OFFICE OF THE SECRETARY OF STATE

BEV CLARNO

SECRETARY OF STATE

JEFF MORGAN

INTERIM DEPUTY SECRETARY OF STATE

ARCHIVES DIVISION

STEPHANIE CLARK

DIRECTOR

800 SUMMER STREET NE

SALEM, OR 97310

503-373-0701

TEMPORARY ADMINISTRATIVE ORDERINCLUDING STATEMENT OF NEED & JUSTIFICATION

CFTB 1-2020CHAPTER 585COMMISSION FOR THE BLIND

FILED12/10/2020 2:34 PMARCHIVES DIVISION

SECRETARY OF STATE& LEGISLATIVE COUNSEL

FILING CAPTION: Amends Business Enterprise Program rules for Licensing, Vacancies, Set-Aside, Responsibilities,

Dispute Resolution and Subcontracting

EFFECTIVE DATE: 12/14/2020 THROUGH 06/09/2021

AGENCY APPROVED DATE: 12/04/2020

CONTACT: Eric Morris

971-673-1607

eric.morris@state.or.us

535 SE 12th Ave

Portland,OR 97214

Filed By:

Maximilian West

Rules Coordinator

NEED FOR THE RULE(S):

HB3253 (2017) mandated the following: "SECTION 22. Not later than November 15, 2017, the Commission for the

Blind shall adopt the rules required under sections 3, 5 and 6 of this 2017 Act and ORS 346.510 and 346.540 by sections

12 and 15 of this 2017 Act, and may amend the rules thereafter".

The agency implemented the HB3253 rule making requirements in 2017. Prior to the permanent rulemaking in 2017,

the agency submitted the rules to the Federal Rehabilitation Services Administration (RSA) for legal review.

In October of 2020, RSA completed its review process and transmitted a final approved version of the rules to the

agency.

JUSTIFICATION OF TEMPORARY FILING:

Since 2017, stakeholders have expressed serious concerns and filed administrative complaints that the 2017 rules were

not approved by the RSA. The temporary filing will mitigate further potential administrative and legal complaints.

Temporary rule making is justified to ensure that the federally approved version of the rules are in effect immediately.

The agency intends to have permanent Chapter 585, Division 15 rules in place before the expiration of these temporary

rules.

DOCUMENTS RELIED UPON, AND WHERE THEY ARE AVAILABLE:

Oregon House Bill 3253 (2017).

Page 1 of 21

Oregon Legislative Information System:

https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB3253

Department of Education’s Rehabilitation Services Administration (RSA) final approved rule language. Available upon

request.

RULES:

585-015-0010, 585-015-0015, 585-015-0020, 585-015-0025, 585-015-0035, 585-015-0050

AMEND: 585-015-0010

RULE SUMMARY: Establishes a process for blind individuals to be licensed in the Business Enterprise program.

Updated language added for appeal of licensure denial, and progressive discipline process modified to exclude the

operating agreement.

CHANGES TO RULE:

585-015-0010

Licensing

(1) TRAINEE SELECTION - To become a trainee in the Business Enterprise program, an applicant must meet the

following qualifications:¶

(a) Be a citizen of the United States;¶

(b) Be present in the State of Oregon;¶

(c) Be a blind person;¶

(d) Be a client of the Commission's vocational rehabilitation program;¶

(e) Be certified by the Commission's vocational rehabilitation program as capable and qualified to operate a

vending facility;¶

(f) Complete and submit an application form to the Director;¶

(g) Complete the Business Enterprise program testing requirements.¶

(h) The Director must also determine that there is reasonable expectation that the client will successfully

complete the required training.¶

(2) TRAINING - To be eligible for a license, a trainee must successfully complete the training course provided by

the Business Enterprise program. The Business Enterprise program, with the active participation of the BECC,

shall design the training course for assignment to a vending facility. The training will encompass operations of all

types of vending facilities. The training course may include distance education or college courses. It shall include

on-the-job training at one or more Director approved facilities. ¶

(a) A trainee must demonstrate proficiency in the skills acquired during on-the-job training.¶

(b) With active participation of the BECC, additional training may be required as a prerequisite for assignment to

unique vending facilities.¶

(c) A trainee must demonstrate proficiency in mathematics, writing, reading comprehension, and computer skills

to the extent necessary to successfully operate a vending facility.¶

(d) A trainee must achieve a passing score on any examination administered during the training program.¶

(3) LICENSES - With respect to issuing a license to a trainee,¶

(a) The Commission shall issue a license to a trainee who has met all eligibility requirements, who has successfully

completed the Business Enterprise program's training program, and who has passed the final training

examination.¶

(b) The Commission shall issue a license to a blind person who is licensed in another state only under the following

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circumstances:¶

(c) The applicant shall have signed a consent form for release of information for all states where the applicant has

received or applied for rehabilitation services;¶

(d) The applicant shall have no outstanding debts with any other rehabilitation agencies;¶

(e) The applicant's license shall not be suspended or terminated;¶

(f) The applicant shall be a citizen of the United States and be present in the State of Oregon;¶

(g) The applicant shall be a blind person;¶

(h) The applicant shall be a client of the Commission's vocational rehabilitation program;¶

(i) The applicant shall be certified by the Commission's vocational rehabilitation program as capable and qualified

to operate a vending facility; ¶

(j) The applicant shall complete and submit an application form to the Director;¶

(k) The applicant shall complete the Business Enterprise program testing requirements;¶

(l) The applicant shall demonstrate proficiency in the required skills assessed on-the-job by Business Enterprise

staff at a vending facility approved by the Director;¶

(m) The applicant shall demonstrate proficiency in mathematics, writing, reading comprehension, and computer

skills to the extent necessary to successfully operate a vending facility, and;¶

(n) The applicant shall achieve a passing score on the final training examination.¶

(4) DENIAL OF A LICENSE - if a license is denied, the applicant may appeal using the VR agency process outlined in

the VR client Rights & Responsibilities

(https://www.oregon.gov/blind/Documents/VR%20Rights%20and%20Responsibilities.pdf) and dispute

resolution forms (https://www.oregon.gov/blind/Documents/ocb_dispute_resolution_notice%20updated.doc).

The Commission shall deny a license when any of the following occur:¶

(a) With respect to a trainee, the Commission shall deny licensure when:¶

(A) A trainee does not successfully complete the Business Enterprise training program;¶

(B) A trainee does not demonstrate proficiency in the skills acquired during on-the-job training;¶

(C) A trainee does not demonstrate proficiency in mathematics, writing, reading comprehension, or computer

skills to the extent necessary to successfully operate a vending facility;¶

(D) A trainee does not achieve a passing score on the final training examination.¶

(b) With respect a vending facility manager from another state, the Commission shall deny licensure when:¶

(A) An applicant does not complete and submit an application form to the Director;¶

(B) An applicant does not complete the Business Enterprise program testing requirements;¶

(C) An applicant does not complete a signed consent form for release of information for all states where the

applicant has received or applied for rehabilitation services;¶

(D) An applicant has outstanding debts with any rehabilitation agencies;¶

(E) An applicant's license has been suspended or terminated;¶

(F) An applicant is not a client of the Commission's vocational rehabilitation program;¶

(G) An applicant is not certified by the Commission's vocational rehabilitation program as capable and qualified to

operate a vending facility;¶

(H) An applicant does not demonstrate proficiency in the required skills when assessed on-the-job by Business

Enterprise staff at a vending facility approved by the Director;¶

(I) An applicant does not demonstrate proficiency in mathematics, writing, reading comprehension, and computer

skills to the extent necessary to successfully operate a vending facility;¶

(J) An applicant does not achieve a passing score on the final training examination;¶

(5) PROGRESSIVE DISCIPLINE - The Commission shall utilize progressive discipline to document and correct

performance or conduct issues, prior to terminating a vending facility manager's license. Except as provided by

OAR 585-015-0030, Section F - Emergency Removal from Vending Facility, the Commission shall use progressive

discipline with the vending facility managers. All notices of disciplinary action shall advise the vending facility

manager of their right to appeal. The notice shall also advise the vending facility manager of the availability of the

BECC to assist and act as an advocate. Throughout the process, if the Commission determines that the

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performance or conduct issues can be appropriately addressed through training, the Commission shall make such

training available to the vending facility manager. The Commission may take the following progressive discipline

steps:¶

(a) Step 1 - Verbal warning: Business Enterprise program staff will discuss the performance or conduct issue(s)

that was observed or reported with the vending facility manager. Business Enterprise staff will explain the

expected corrective actions, and the expected amount of time to complete the corrective actions, to the vending

facility manager. Business Enterprise staff will document the discussion and provide the vending facility manager

a copy of the documentation. The manager shall sign a copy of the documentation after being afforded the

opportunity to read it in the manger's preferred mode. If the Commission determines that the performance or

conduct issues can be appropriately addressed through training, the Commission shall make such training

available to the vending facility manager.¶

(b) Step 2 - Written warning: if a vending facility manager does not take the corrective actions that were

documented in step 1, and the performance or conduct issue(s) continue, Business Enterprise staff will issue the

vending facility manager a written warning that documents the performance or conduct issue(s) that continue to

be reported or observed, the actions that were not taken after the step 1 warning, and the required immediate

corrective action(s) and timeline(s), the vending facility manager must complete to remedy the issue(s). The

Director will review the written warning with the vending facility manager to ensure they fully understand the

expected immediate and sustained corrective actions that need to occur, to prevent further progressive discipline

or termination of their license or operating agreement. The vending facility manager shall receive a copy of the

written warning. The manager shall sign a copy of the documentation after being afforded the opportunity to read

it in the manger's preferred mode. If the Commission determines that the performance or conduct issues can be

appropriately addressed through training, the Commission shall make such training available to the vending

facility manager.¶

(c) Step 3 - Final warning: if a vending facility manager does not take the corrective actions that were documented

in step 2, and the performance or conduct issue(s) continue, Business Enterprise staff will issue the vending facility

manager a final written warning. The final warning shall document the performance or conduct issue(s) that

continue to be reported or observed, the actions that were not taken after the step 2 warning, and the required

immediate corrective action(s) and timeline(s), the vending facility manager must complete to remedy the issue(s).

The manager shall sign a copy of the documentation after being afforded the opportunity to read it in the manger's

preferred mode. If the Commission determines that the performance or conduct issues can be appropriately

addressed through training, the Commission shall make such training available to the vending facility manager.¶

(d) Step 4 - Termination: if the vending facility manager does not complete the required corrective actions,

outlined in step 3, within the required timeline, the Commission may begin the process to terminate the vending

facility manager's license or operating agreement. The vending facility manager shall receive due process as

outlined in Section F, Termination of License.¶

(e) If the Commission determines that the performance or conduct issues can be appropriately addressed through

training, the Commission shall make such training available to the vending facility manager. ¶

(6) Termination of License - The Commission may terminate the license of a vending facility manager when the

vending facility manager:¶

(a) Ceases to meet eligibility requirements;¶

(b) Resigns or retires from the Business Enterprise program;¶

(c) Abandons or fails to personally manage the assigned vending facility; ¶

(d) Does not comply with applicable laws, rules, the permit or vending facility agreement to which the manager is

assigned;¶

(e) Does not comply with the terms and conditions of their operating agreement;¶

(f) May be terminated as provided for in CFR 395.7(b); ¶

(g) Intentionally or recklessly damages or destroys equipment furnished by the Commission or the agency named

in the permit or vending facility agreement; ¶

(h) Commits theft, fraud or embezzlement; ¶

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(i) Uses, or is under the influence of an intoxicant or illegal drug while at a vending facility;¶

(j) Fails to submit required monthly set-aside or other reports; ¶

(k) Intentionally submits false reports;¶

(l) Fails to retain supporting documentation for monthly reports;¶

(m) Fails to cooperate with a financial audit;¶

(n) Fails to submit to an eye exam when requested;¶

(o) Fails to pay set-aside charges or scheduled repayments for more than sixty (60) days; ¶

(p) Fails to maintain required insurance coverage,¶

(q) Fails to provide proof of insurance coverage;¶

(r) Illegally operates a motor vehicle while on duty or while traveling to or from a vending facility;¶

(s) Represents themselves as employees of the State of Oregon or the Commission, or solicits or negotiates for

new vending facility agreements or permits. ¶

(7) NOTICE OF TERMINATION - When the Commission has grounds for termination of a license it shall provide

written notice of termination to the vending facility manager as required in ORS 183.415(2). Such notice shall

advise the vending facility manager of his/her right to a full evidentiary hearing as provided in section "Dispute

Resolution Process, C" when the vending facility manager makes a written request for a full evidentiary hearing,

as required in 34 CFR 395.13.¶

(8) REINSTATEMENT - A blind person may apply for reinstatement of their license and shall meet the following

requirements prior to a new license being issued:¶

(a) A blind person shall have resigned or retired from the Business Enterprise program;¶

(b) A blind person shall successfully complete all steps outlined in the LICENSING section.¶

(9) POST-LICENSURE TRAINING - The Commission shall provide training to vending facility managers and

licensees at least once per calendar year.¶

(a) Vending facility managers and licensees are required to attend one Commission sponsored training per

calendar year. This requirement may be waived only with the Commission's written consent due to illness or

bereavement; ¶

(b) Vending facility managers and licensees may attend via teleconference;¶

(c) Planning for training will be done with the active participation of the Business Enterprise Consumer

Committee;¶

(cd) Training topics may include strategies for improved work opportunities, budgeting, marketing, customer

service, employee management and industry trends.¶

(10) ADDITIONAL TRAINING - When the Commission determines a vending facility manager or licensee requires

additional training, the Commission shall arrange for additional training.¶

The Commission shall provide post-employment services consistent with the requirements in 34 CFR 395.11.¶

(11) CONTINUING EDUCATION (CE) TRAINING - In order to ensure continued professional growth and to

enhance opportunities for upward mobility, all vending facility managers, and licensees, are required to complete

continuing education credits each calendar year. ¶

(a) In order to meet this requirement, the vending facility manager shall complete three of the following activities:

¶

(A) Attendance at a vending facility manager training sponsored by the BECC with the assistance of the

Commission;¶

(B) Attendance at the National Association of Blind Merchants (NABM) BLAST Conference;¶

(C) Attendance at the Randolph-Sheppard Vendors of America (RSVA) Sagebrush Conference;¶

(D) Attendance at the National Automatic Merchandising Association NAMA Show;¶

(E) Attendance at the National Restaurant Association (NRA) Annual Conference;¶

(F) Attendance at the National Association of Convenience Stores (NACS) Annual Conference;¶

(G) Successful completion of a Hadley Institute for the Blind and Visually Impaired online training course offered

by Hadley's Forsythe Business Program; ¶

(H) Certification or recertification in the National Restaurant Association's ServSafe food safety program; ¶

Page 5 of 21

(I) Attending a State NAMA Conference; ¶

(J) Attending an industry sponsored food show;¶

(K) Successful completion of a college business course.¶

(b) Additionally, the Commission may design training specific to an individual or with the active participation of the

BECC identify other training opportunities not listed above. With the active participation of the BECC, point

values will be assigned to such training as appropriate. ¶

(c) It will be the responsibility of the vending facility manager, or licensee, to provide documentation each January

of attendance or completion of all training. The Commission shall maintain said documentation. ¶

(d) Failure to meet the continuing education requirements will disqualify a vending facility manager from bidding

on facilities for the next calendar year.¶

(e) The Commission may make an exception to the training requirement if the vending facility manager, or

licensee, cannot complete the training due to medical issues or other documented hardships.

Statutory/Other Authority: HB 3253 (2017)

Statutes/Other Implemented: ORS 346.510 to 346.570

Page 6 of 21

AMEND: 585-015-0015

RULE SUMMARY: Establishes a process for the assignment for vending facilities. Updated language added to account

for BECC chairperson bidding on a vacancy, operating agreement termination language added and vending facility types

clarified.

CHANGES TO RULE:

585-015-0015

Vacancies

(1) NOTICE - When a new or existing vending facility becomes available, the Business Enterprise Program shall

send an announcement to all vending facility managers and licensees. The announcement shall provide the

following information for the vending facility (as applicable): ¶

(a) The vending facility agreement or permit;¶

(b) A list of equipment provided;¶

(c) A list of the types of products sold;¶

(d) Sales figures and net proceeds for the past three (3) years;¶

(e) Number of employees needed for current staffing levels;¶

(f) For new vending facilities, a survey if available;¶

(g) The required date to respond to the vacancy notice;¶

(h) Whether or not the vending facility manager would be required to relinquish their existing vending facility, if

selected.¶

(2) APPLICATION - A vending facility manager or licensee may apply for any vacancy, and shall meet the following

conditions: ¶

(a) Has no past due indebtedness to the Commission; ¶

(b) Has met the continuing education requirement as outlined in the Section above. ;¶

(c) Has submitted a resume and letter of interest to the Director.;¶

(d) The Director shall use the above conditions to determine which vending facility managers; or ¶

(e) licensees qualify for the selection process. ¶

(3) SELECTION - A selection committee shall be formed to interview vending facility managers and licensees who

have applied for a vacancy. ¶

(a) The selection committee shall recommend to the Director one candidate for selection. The selection committee

shall consist of:¶

(A) The Business Enterprise Consumer Committee chair;¶

(B) The Director or Business Enterprise staff assigned by the Director;¶

(C) A vending facility manager or licensee selected by the mutual agreement of the Director and (D) Business

Enterprise Consumer Committee Chair;¶

(ED) The building manager or a representative, if the building manager requests to participate, provided the

Program has provided an orientation to blindness training to that individual.¶

(b) A vending facility manager may not participate on any selection committee for a vacancy they have applied for.

If the Business Enterprise Committee Elected Chair has applied for a vacancy, then the Director and Chair shall

select a mutually agreed upon replacement from the Business Enterprise Consumer CommitteeVice-Chair of the

Business Enterprise Consumer Committee shall assume the Chair's duties in the selection process.¶

(c) The selection committee shall conduct either in-person or telephone interviews. The selection committee shall

establish a list of questions that will be asked of all applicants. The selection committee shall grade each applicant

in the following categories:¶

(A) Vending facility manager experience;¶

(B) Other management experience;¶

(C) Customer service experience;¶

(D) Operational performance;¶

(E) Financial performance;¶

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(F) Education background;¶

(G) Training completed;¶

(H) Operational plan for the facility if selected.¶

(d) The selection committee members shall score each of the categories zero (0) to ten (10), the maximum score

being eighty (80). Each selection committee member shall add all eight (8) category scores to calculate a total

score for each applicant. The selection committee members shall then add their total scores together to give the

applicant an aggregated total score. The applicant with the highest aggregated total score shall be recommended.

In the event of a tie, the applicant with the most years of experience in the Oregon Business Enterprise program

shall be recommended.¶

(e) The Director shall award the facility to the vending facility manager recommended by the selection committee

unless the Director can justify to the selection committee the reason for selecting another vending facility

manager.¶

(f) If there is only one applicant for a vending facility, the Director may select the applicant without using a

selection committee.¶

(4) OPERATING AGREEMENT - The Commission shall enter into biennial operating agreements with vending

facility managers for the operation of vending facilities.¶

(a) Termination of Operating Agreement: The operating agreement may be terminated and the VFM removed

from the vending facility when any of the following has occurred:¶

(A) The vending facility named in this agreement is permanently closed;¶

(B) The VFM resigns from operating the vending facility; ¶

(C) The VFM subcontracts facilities/sites that have not been approved by the Commission, or utilizes a

subcontractor that is not on the list of approved subcontractors;¶

(D) The VFM's license has been terminated by the Commission;¶

(E) The VFM has failed to fulfill the terms and conditions of the vending facility agreement or permit;¶

(F) The VFM has failed to fulfill their responsibilities outlined in the operating agreement, after being afforded the

opportunity to remedy specific failures.¶

(b) A VFM shall receive due process prior to the operating agreement being terminated under the provisions of

items C, D, E or F above.¶

(5) TEMPORARY ASSIGNMENT - If a vending facility manager or licensee is not available or selected for

permanent assignment to a vending facility, the Commission shall select a vending facility manager or licensee to

operate the vending facility under a temporary operating agreement if a vending facility manager is available and

willing to accept the temporary assignment. A vending facility manager or licensee with indebtedness to the

Commission shall not be eligible to operate a vending facility under a temporary operating agreement.¶

(a) The following process shall be used to select a temporary manager:¶

(A) The Director shall send an announcement of a temporary vending facility assignment to all vending facility

managers and licensees. The announcement shall contain the following:¶

(i) The vending facility agreement or permit;¶

(ii) A list of equipment provided;¶

(iii) A list of the types of products sold;¶

(iv) Sales figures and net proceeds for the past three (3) years;¶

(v) For new vending facilities, a survey if available;¶

(B) A vending facility manager or licensee shall apply to the Director for assignment as the temporary manager.¶

(C) If more than one vending facility manager or licensee applies for the temporary assignment the Director shall

interview the applicants.¶

(D) The Director shall select a vending facility manager or licensee based on the following categories:¶

(i) Vending facility manager experience;¶

(ii) Other management experience;¶

(iii) Customer service experience;¶

(iv) Operational performance;¶

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(v) Financial performance;¶

(vi) Educational background;¶

(vii) Training received.¶

(E) The Director shall score each of the categories zero (0) to ten (10), the maximum score being seventy (70). The

Director shall add up all seven (7) category scores to calculate an overall total score for each applicant. The

applicant with the highest total score shall be selected. In the event of a tie score the applicant with the most years

of experience in the Oregon Business Enterprise program shall be selected.¶

(F) After a vending facility manager or licensee has been selected, the Commission and the selected vending

facility manager or licensee shall fully execute a temporary operating agreement for the vending facility.¶

(b) If no vending facility manager or licensee is willing to accept a temporary operating agreement for the vending

facility, the Commission shall contract with a private vendor for the continued operation of the vending facility

until a vending facility manager or licensee is selected to operate the vending facility.¶

(c) If a vending facility becomes vacant without prior notice by the vending facility manager, the Commission may

elect to contract with a third party vendor to ensure continuous operation of a vending facility. With the active

participation of the BECC, a decision will be made as to when to announce the vacant facility so that all vending

facility managers and licensees can bid. In such instances, the vending facility will not be operated by the third

party for more than six months without bidding it out to the vending facility managers and licensees, unless there

are unique circumstances in the judgement of the Commission. If the facility is no longer viable, the Commission,

with the active participation of the BECC, may choose not to bid it out and may make other arrangements. Other

arrangements may include, changing the business type of the facility (i.e. cafeteria to micro market) or closing the

facility due to low profitability.

Statutory/Other Authority: HB 3253 (2017)

Statutes/Other Implemented: ORS 346.510 to 346.570

Page 9 of 21

AMEND: 585-015-0020

RULE SUMMARY: Establishes a percentage rate of set-aside paid by vending facility managers. Updated language

removes the word “their” from the reporting section.

CHANGES TO RULE:

585-015-0020

Set-Aside Funds

(1) ASSESSMENT - The standard set aside charge is eleven percent (11%) of a vending facility's monthly net

proceeds.¶

(2) SET-ASIDE INCENTIVES - The Commission shall reduce the percentage of set aside collected from a vending

facility manager, by the following amounts: ¶

(a) Four percentage points, if the vending facility offers exclusively healthy vending items or local vending items.

To qualify for the local vending item incentive, 100% of items sold in all vending machines or cafeterias must meet

the definition of a Local Vending Item. To qualify for the healthy vending item incentive, all packaged snacks in

vending machines are required to meet the Food and Nutrition Standards for Packaged Foods, and Food and

Nutrition Standards for Beverages, as outlined in Food Service Guidelines Federal Workgroup. Food Service

Guidelines for Federal Facilities. Washington, DC: U.S. Department of Health and Human Services; 2017. To

qualify for the healthy vending item incentive, cafeterias and snack bars are required to implement at the

Standard and Innovative Implementation levels for all categories of prepared foods and beverages as outlined in

Food Service Guidelines Federal Workgroup. Food Service Guidelines for Federal Facilities. Washington, DC: U.S.

Department of Health and Human Services; 2017; ¶

(b) Three percentage points if at least 75 percent but less than 100 percent of the offerings at the vending facility

are healthy vending items or local vending items. To qualify for the local vending item incentive, 75% to 99% of

items sold in all vending machines or cafeterias must meet the definition of a Local Vending Item. To qualify for the

healthy vending item incentive, 75% to 99% of items in all vending machines are required to meet the Food and

Nutrition Standards for Packaged Foods, and Food and Nutrition Standards for Beverages, as outlined in Food

Service Guidelines Federal Workgroup. Food Service Guidelines for Federal Facilities. Washington, DC: U.S.

Department of Health and Human Services; 2017. To qualify for the healthy vending item incentive, cafeterias and

snack bars are required to implement 75% to 99% of the Standard and Innovative Implementation Levels for all

categories of prepared foods and beverages outlined in Food Service Guidelines Federal Workgroup. Food Service

Guidelines for Federal Facilities. Washington, DC: U.S. Department of Health and Human Services; 2017;¶

(c) Two percentage points if at least 50 percent but less than 75 percent of the offerings at the vending facility are

healthy vending items or local vending items. To qualify for the local vending item incentive, 50% to 74% of items

sold in all vending machines or cafeterias must meet the definition of a Local Vending Item. To qualify for the

healthy vending item incentive, 50% to 74% of items in all vending machines are required to meet Food and

Nutrition Standards for Packaged Foods, and Food and Nutrition Standards for Beverages, as outlined in Food

Service Guidelines Federal Workgroup. Food Service Guidelines for Federal Facilities. Washington, DC: U.S.

Department of Health and Human Services; 2017. To qualify for the healthy vending incentive, cafeterias and

snack bars are required to implement 50% to 74% of the Standard and Innovative Implementation Levels for all

categories of prepared foods and beverages outlined in Food Service Guidelines Federal Workgroup. Food Service

Guidelines for Federal Facilities. Washington, DC: U.S. Department of Health and Human Services; 2017;¶

(d) Two percentage points if the vending facility employs at least one person who is blind, in addition to the

vending facility manager; ¶

(e) One percentage point for each person who is blind and is employed by the vending facility in addition to the

persons described in section 4; ¶

(f) One percentage point if the vending facility employs at least one person with a disability, as defined in ORS

174.107, or who is a veteran, as defined in ORS 408.225, in addition to the vending facility manager; and¶

(g) One-half of one percentage point for each person with a disability or veteran employed by the vending facility

in addition to the persons described in section ¶

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(h) References - The following link provides the criteria for healthy vending items:¶

https://www.cdc.gov/obesity/downloads/guidelines_for_federal_concessions_and_vending_operations.pdf.¶

(i) Set-aside reductions are not cumulative. Vending facility managers who meet the requirements of (2)(a) above

will receive a 4 percentage point reduction but no more. Vending facility managers who do not meet the

requirements of (2)(a) above will earn reductions of no more than 3 percentage points. ¶

(j) Vending facility managers shall provide proof annually for the incentives for which they qualify.¶

(k) Proof for vending machines shall consist of one of the following, to be submitted to and verified by the Business

Enterprise Program:¶

(A) A planogram schematic of each vending machine and photos of the machine each time it is stocked; or¶

(B) Monthly inventory records of items installed in each machine¶

(l) Proof for cafeterias and snack bars shall consist of the following, to be submitted to and verified by the Business

Enterprise Program:¶

(A) Either of the options listed above for vending machines, and ¶

(B) Weekly copies of menus and lists of items for sale, and ¶

(C) Recipes for all menu items made on-site ¶

(3) DEDUCTIONS - When determining net proceeds, the vending facility manager may deduct vending facility

operating costs or operating expenses paid during the reported calendar month. ¶

(a) The allowable deduction is the actual dollar amount paid, as further limited below:¶

(A) Cost of food and products, this would include raw food and ingredients, prepared food, vending products, and

other supplies and materials for resale;¶

(B) Direct vending facility rent and utilities, this includes off-site storage, power, phone, and internet services;¶

(C) Wages paid to employees, including any spouse, domestic partner or relative by blood or marriage, not to

exceed two times the State of Oregon's minimum wage, provided the vendor is compliant with IRS reporting;¶

(D) Benefits paid to employees, including any spouse, domestic partner, or to a relative by blood or marriage;¶

(E) Payroll taxes;¶

(F) Business taxes, licenses and health permits necessary to operate the vending facility;¶

(G) Liability, fire, property damage and workers' compensation insurance;¶

(H) Business consultant services with prior written approval from Agency;¶

(I) Legal fees, directly related to the operation of the vending facility with prior written approval from Agency;¶

(J) Accounting and banking expenses, this includes business tax preparation, credit card processing and bank

fees;¶

(K) Vending facility janitorial services;¶

(L) Payments for equipment owned or leased by the vending facility manager with prior written approval of the

Commission;¶

(M) Repairs to vending facility equipment;¶

(N) Office supplies directly related to operating the vending facility;¶

(O) Automobile expenses, the allowable expense is either the documented business related mileage driven,

multiplied by the current Internal Revenue Service standard mileage rate (www.IRS.gov), or the total itemized

automobile expenses for that month; ¶

(P) Travel expenses, for business related travel;¶

(Q) Training expenses, for business related training;¶

(R) Miscellaneous business expenses, each expense shall be itemized, allowable expense include laundry and

uniform expenses, advertising and promotional expenses, printing expenses, pest control expenses, and business

related Interest expenses, the allowable amounts is the actual amount paid for all miscellaneous expenses.¶

(b) The following deductions are not allowed:¶

(A) Cost of food and products purchased for personal use;¶

(B) Personal rent and utilities;¶

(C) Benefits paid to non-employees, (other than to any spouse, domestic partner, or to a relative by blood or

marriage) including health insurance, life insurance, long term care insurance and retirement benefit costs; ¶

Page 11 of 21

(D) Personal tax obligations;¶

(E) Personal insurance, including liability, home owners and automobile insurance; ¶

(F) Personal legal costs;¶

(G) Personal accounting and banking expenses;¶

(H) Personal travel expenses, for non-business related travel; ¶

(4) USE OF SET-ASIDE - Set aside dollars will be spent in accordance with Section 2 of HB 3253:¶

(1) The Commission for the Blind shall establish in the State Treasury a fund from the net [WM1] proceeds of the

operation of vending facilities. Moneys deposited into the fund, including the interest earned, shall be credited to a

special checking account, separate and distinct from the General Fund. Disbursement from the account may be

made by check signed by the person designated by the Commission. Interest earned by the account shall be

credited to the account. ¶

(2) Moneys in the fund shall be used for the purposes of, and are continuously appropriated to the Commission for:

¶

(a) Maintaining and replacing equipment; ¶

(b) Purchasing new equipment; ¶

(c) Management services, including but not limited to management training services; ¶

(d) Ensuring a fair minimum of return to vending facility managers; and ¶

(e) Retirement or pension funds, health insurance contributions and, if determined by a vote of vending facility

managers, paid sick leave and vacation time. ¶

(3) The Commission shall provide to the Governor and to vending facility managers quarterly reports of the

account established under this section.¶

(5) REPORTING - By the 20th day of each calendar month, the vending facility manager shall provide to the

Commission the following information for their assigned[WM2] vending facility:¶

(a) Total sales.¶

(b) Total cost of goods sold.¶

(c) Total vending machine income and rebates received;¶

(d) Total allowable expenses paid for employee wages;¶

(e) Total allowable expense paid for employee benefits;¶

(f) Total paid for payroll taxes and business taxes;¶

(g) Total paid for licenses and permits to operate the vending facility;¶

(h) Total paid for liability, fire, property damage and workers' compensation insurance; ¶

(i) Total paid for janitorial services;¶

(j) Total paid for business consultant services;¶

(k) Total allowable expense paid for legal fees.¶

(l) Total paid for bookkeeping and accounting services;¶

(m) Total paid for vending facility equipment repairs;¶

(n) Total allowable expense paid for equipment rented or leased;¶

(o) Total allowable expenses paid for vending facility related automobile mileage or expenses;¶

(p) Total paid for office supplies;¶

(q) Total allowable expenses paid for miscellaneous business expenses. Each expense must be itemized.¶

(6) RECORDKEEPING, FINANCIAL REPORTING AND SET-ASIDE PAYMENTS - The vending facility manager

shall: ¶

(a) Maintain and furnish to the Commission reports as required; ¶

(b) Submit set aside reports on a Commission approved form, including required supporting documentation,

inventory data and the payment of set-aside fees;¶

(c) Submit set aside reports and set aside payments in accordance with their operating agreement.¶

(7) RETENTION - Vending facility managers shall retain the monthly information and all documentation of sales,

revenues, commissions, costs and expenses sent to the Commission for a period of three (3) calendar years.

Statutory/Other Authority: HB3253, 183.341

Page 12 of 21

Statutes/Other Implemented: 346.510-346.570

Page 13 of 21

AMEND: 585-015-0025

RULE SUMMARY: Establishes responsibilities for the Commission and vending facility mangers participating in the

Business Enterprise program. Updated language added for non-discrimination practices and incident reporting

timelines clarified.

CHANGES TO RULE:

585-015-0025

Responsibilities

(1) DIRECTOR - The Director and the Business Enterprise Program staff are responsible for planning, directing

and supervising the Business Enterprise Program, in accordance with 34 CFR part 395 and ORS 346.510-570.

This includes:¶

(a) Working with the Business Enterprise Consumer Committee, in accordance with 34 CFR 395.14(b)1-5 and

ORS 346.510-570;¶

(b) Developing and implementing rules, regulations, policies and procedures;¶

(c) Enforcing rules, regulations, policies and procedures;¶

(d) Monitoring compliance with state and federal law;¶

(e) Conducting strategic planning with the Business Enterprise Consumer Committee;¶

(f) Developing and monitoring the Business Enterprise Program budget;¶

(g) Coordinating the training program for trainees and licensees;¶

(h) Coordinating with the Business Enterprise Consumer Committee in planning annual post licensure training

meetings;¶

(i) Surveying potential new vending facilities;¶

(j) Establishing new vending facilities;¶

(k) Establishing and maintaining equipment inventory control;¶

(l) Selecting vending facility managers for operation of vending facilities;¶

(m) Reviewing and documenting operation of vending facilities through on-site visits;¶

(n) Advising vending facility managers of deficient areas and assisting the vending facility manager in developing

performance improvement plans;¶

(o) Coordinating the transfer and promotion of licensees and vending facility managers;¶

(p) Advising vending facility managers as needed on merchandising, inventory control, reporting, and all related

business functions;¶

(q) Coordinating and supervising the transfer of vending facility inventory;¶

(r) Recommending initial inventory purchases to the vending facility manager's vocational rehabilitation

counselor;¶

(s) Performing inventory of Business Enterprise Program equipment;¶

(t) Communicating with building managers; ¶

(u) Ensuring building managers are provided a copy of the assigned vending facility manager's operating

agreement;¶

(v) Conducting audits of vending facilities and vending facility managers;¶

(w) Ensuring for the continued operation of vending facilities;¶

(x) Responding to written requests and recommendations from the Business Enterprise Consumer Committee

within 30 days;¶

(y) Undertaking any additional acts or duties described in these rules as the responsibility of the Commission.¶

(2) EQUIPMENT AND INVENTORY - The Commission shall supply a vending facility manager of a new vending

facility the equipment and initial inventory of merchandise necessary to begin business in the vending facility;¶

(a) The right, title to, and interest in the equipment of each vending facility and the initial inventory will be vested

in the Commission. The right, title to, and interest in the Initial inventory shall be transferred to vending facility

manager only after the vending facility manager has reimbursed the Commission the total cost of the initial

inventory; ¶

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(b) The vending facility manager may reimburse the Commission the total cost of the initial inventory in one

payment, or via a monthly repayment plan of no more than 20 months. ¶

(c) The need for any additional equipment for an established vending facility is determined by the Director in

consultation with the assigned vending facility manager;¶

(d) When the vending facility manager surrenders a vending facility, whether through transfer, resignation or

retirement, or termination, the vending facility manager shall turn over all Commission-owned equipment and

inventory. The Commission shall return any monies owed, such as initial inventory retained by the Commission, to

the vending facility manager, minus set-aside payments or other payments due to the Commission, within 30

days.¶

(3) MAINTENANCE, REPAIR AND REPLACEMENT OF EQUIPMENT - The Commission shall:¶

(a) Maintain, or cause to be maintained, all vending facility equipment, owned by the Commission, in good repair

and attractive condition;¶

(b) Not be responsible or liable for repair, maintenance or any other cost or damages directly or indirectly

associated with any use of equipment not owned by the Commission;¶

(c) Not be responsible or liable for repair of equipment intentionally or recklessly damaged by vending facility

managers. ¶

(4) ACCESS TO PROGRAM AND FINANCIAL INFORMATION - The Commission shall:¶

(a) Provide to each licensee or vending facility manager access to program and financial data relevant to the

operation of the Business Enterprise Program, including quarterly and annual financial reports, to the extent that

such disclosure does not violate applicable Federal and state laws pertaining to disclosure of confidential

information.¶

(b) Provide financial data in an accessible format; ¶

(c) At the request of a licensee or vending facility manager, arrange a convenient time to assist in the

interpretation of such data. ¶

(5) EXPLANATION OF RIGHTS AND RESPONSIBILITIES TO VENDING FACILITY MANAGERS - The Commission

shall make available to all vending facility managers the following:¶

(a) Documents relevant to the operation of the vending facility manager's assigned vending facility, to include the

current vending facility agreement or permit for the operation of the vending facility; ¶

(b) Business Enterprise rules and regulations as posted on the Commission's website, which includes the right to

due process. ¶

(c) The Business Enterprise Program shall not discriminate in any way in any of its operations and administration

on the basis of sex, age, physical or mental impairment, creed, color, national origin, or political affiliation.¶

(6) EMERGENCY REMOVAL FROM VENDING FACILITY - The Commission shall remove a vending facility

manager from a vending facility if there is evidence of a hazardous situation involving the vending facility manager

which poses an immediate threat to the safety of the vending facility manager or others. This removal may be

immediate if the circumstances require. Within at least twenty-four (24) hours of the removal, the Commission

shall contact the Chair of the BECC and inform them of the action. Within ten (10) working days, the vending

facility manager may request a full evidentiary hearing if the vending facility manager disagrees with the

emergency removal. In the event of a vending facility manager's removal under paragraph (1) of this subsection,

the Commission must, within ten (10) working days, do one of the following: ¶

(a) Return the vending facility manager to the vending facility; ¶

(b) Mandate re-training; ¶

(c) Terminate the operating agreement but allow the vending facility manager to bid on any vacant vending

facilities; ¶

(d) Initiate disciplinary action against the vending facility manager. ¶

(7) VENDING FACILITY MANAGER RESPONSIBILITIES¶

(a) Assigned Vending Facility - The vending facility manager shall operate their assigned vending facility in

accordance with ORS 346.510-570, including: ¶

(A) The Business Enterprise Program's rules and policies related to the operation of a vending facility¶

Page 15 of 21

(B) The terms and conditions of the vending facility agreement or permit;¶

(C) The terms and conditions of their signed operating agreement; ¶

(D) State and Federal laws and regulations applicable to the operation of a vending facility.¶

(E) The vending facility manager shall not discriminate in any way in the operation of the vending facility on the

basis of race, sex, age, physical or mental impairment, creed, color, national origin, or political affiliation. In

addition, the vending facility manager shall not discriminate in any way on the basis of race, color, religion, sex,

sexual orientation, national origin, marital status, age, disability or familial status. ORS 659A.006¶

(b) MANAGEMENT AND OPERATION OF THE VENDING FACILITY¶

(A) General responsibilities - The vending facility manager:¶

(i) Shall provide to the Director, upon request, any relevant documents and records of such activities required for

conducting a review of the vending facility manager and or the vending facility manager's vending facility;¶

(ii) Shall maintain a professional standard for personal appearance, grooming, and conduct, implemented

consistent with nondiscrimination laws and health and safety regulations; ¶

(iii) Shall notify the Commission of scheduled or unscheduled leave, exceeding 10 business days; ¶

(iv) Shall provide customer services in a polite and courteous manner and present a positive, professional image of

the Commission;¶

(v) Shall address customer complaints promptly;¶

(vi) Shall conduct all relations with property management in a positive and constructive manner;¶

(vii) Shall pay all set aside monies due.¶

(B) Vending facility agreement or permit responsibilities - The vending facility manager: ¶

(i) Shall operate the vending facility for business on the days and during the hours specified in the permit or

vending facility agreement;¶

(ii) Shall be solely responsible for all credit account and debt relating to the operation of the vending facility; ¶

(iii) Shall establish a refund policy for each vending facility and communicate the policy to the vending facility

manager's customers.¶

(iv) Shall provide for continued operation of the vending facility in the vending facility manager's absence; ¶

(v) Shall employ a sufficient number of persons to ensure the proper and satisfactory operation of the vending

facility; ¶

(vi) Shall provide and document training for all of their employees; ¶

(vii) Shall provide supervision for all of their employees;¶

(viii) Shall ensure that all employees maintain a professional appearance at all times, implemented consistent with

nondiscrimination laws and health and safety regulations; ¶

(ix) Shall ensure that vending facility manager and all employees are properly uniformed, if required by the

vending facility agreement or permit, and implemented consistent with nondiscrimination laws and health and

safety regulations;¶

(x) Shall ensure their employees adhere to all applicable laws, Business Enterprise rules and the vending facility

agreement or permit terms;¶

(xi) Shall obtain and pay for any applicable permits and licenses required to operate the vending facility;¶

(xii) Shall establish prices that are consistent with local market costs; ¶

(xiii) Shall sell only those articles specified in the permit or vending facility agreement and approved by building

management and the Commission, subject to local market availability.¶

(c) INSURANCE - The vending facility manager shall: ¶

(A) Obtain and maintain insurance of the type and with the limits specified in the permit or vending facility

agreement;¶

(B) Maintain general liability and product liability insurance with limits of not less than $1,000,000 aggregate, if

the permit or vending facility agreement does not specify insurance requirements; ¶

(C) Obtain and maintain workers' compensation insurance, if required by state law; ¶

(D) Maintain commercial liability insurance on any vehicles, if the vehicles are part of the vending facility;¶

(E) Name the vending facility manager and the Commission as co-insured, on all required insurance policies,

Page 16 of 21

excluding worker's compensation insurance; ¶

(F) Ensure that their insurance provider gives the Commission 30-day notice before cancellation;¶

(G) Obtain and file annually with the Commission certificates of insurance indicating that any required insurance

coverage is in force; ¶

(H) Immediately rReport to the Commission any claim or suincident at a vending facility that may be broughlead to

a claim or suit against the vending facility manager as the result of any incident at the vending facilsoon as possible

after the manager becomes aware of ity.¶

(d) EQUIPMENT AND INVENTORY - The vending facility manager shall:¶

(A) Maintain all equipment assigned to the vending facility in good condition; ¶

(B) Ensure that merchandise is fresh, in sufficient variety, and attractively and neatly displayed; ¶

(C) Stock the vending facility with products of sufficient variety and quantity to meet the needs of the vending

facility's customers; ¶

(D) Upon termination of the operating agreement, surrender all Commission-owned equipment in clean and good

working order.¶

(E) A Vending facility manager newly assigned to a vending facility shall pay back to the Commission the amount of

the initial inventory plus change fund beginning six (6) months after taking over the facility, at a rate of 5% of initial

balance per month. ¶

(F) Vending facility managers transferred from another vending facility will begin payment immediately at the 5%

rate.¶

(e) PURCHASE OF EQUIPMENT - The Rules concerning "Purchase of Equipment" apply only to vending facility

manager's purchases of equipment for their vending facility. ¶

(A) The right, title to and interest in the equipment purchased by the Commission to establish a vending facility is

vested solely in the Commission.¶

(B) A Vvending facility manager may purchase equipment with the vending facility manager's own funds. The

vending facility manager may receive a credit for the cost of these purchases from the monthly set aside report

only with Director's prior written approval. The Commission and the vending facility manager shall enter into a

written agreement to provide the terms for a credit of the equipment cost on their monthly set aside report. If the

vending facility manager chooses to receive the credit of the equipment costs on their monthly set aside report,

the right, title and interest in the equipment would then become vested in the Commission. ¶

(C) Example of equipment credit, the vending facility manager purchases a $1,000 piece of equipment with own

funds, cost is then amortized over 10 months, $100 per month credit toward set aside owed, an example month of

calculated set aside owed is $400, $100 credit applied to amount of set aside owed equals $300 set aside

payment.¶

(f) EQUIPMENT REPAIR - The vending facility manager: ¶

(A) Shall pay the full repair cost, if the Commission determines a needed repair is caused by the vending facility

manager's neglect or misuse; ¶

(B) Shall obtain prior written approval from Commission staff for any repair that costs more than one hundred

dollars ($100);¶

(C) May obtain prior verbal approval by Commission staff followed by written approval if prior written approval is

not practicable, or if an emergency situation exists. An "emergency" is defined as a situation that could cause loss

of resale inventory, bodily harm to vending facility employees or customers, loss of the vending facility, or a

harmful effect on the environment.¶

(D) Shall pay for all equipment repairs for equipment not owned by the Commission.

Statutory/Other Authority: 183.341, HB3253

Statutes/Other Implemented: 346.510-346.570, 34 CFR part 395

Page 17 of 21

AMEND: 585-015-0035

RULE SUMMARY: Establishes a process for vending facility managers to file complaints regarding the operation or

administration of the Business Enterprise program. Based on Federal guidance, this rule was re-written to allow for a

VFM to request a full evidentiary hearing, with no administrative review.

CHANGES TO RULE:

585-015-0035

Dispute Resolution

(1) The Dispute Resolution Process¶

(a) Except for the actions described in paragraph (2)(a)(A) below, any - The dispute resolution process is a formal

complaint process that should be utilized when a vending facility manager, or licensee must file a written

complaint with the Director, is unable to informally resolve their concerns. Multi-party complaints are prohibited.

The Director will attempt to resolve vending facility manager, or licensee, concerns at the lowest possible level.

Complaints filed by a VFM, or licensee, must be concerning any Business Enterprise Program action arising from

the operation or administration of the program; .¶

(ba) The complainant shall provide sufficient detail, so that the Director is able to respond and attempt to resolve

the matter;¶

(c)Step 1, filing of a complaint: Except for the actions described in Paragraph (3)(a)(B) below (intent to remove

licensure), any vending facility manager or licensee filling a complaint must file their complaint in writing, using the

Commission approved form;¶

(b) Step 2, documenting the complaint: The complainant shall provide sufficient detail to fully explain the concerns

regarding actions arising from the operation or administration of the Business Enterprise Program. The

complainant shall file the complaint no later than 60 days after the action giving rise to the complaint or within 60

days of the date the complainant knew or should reasonably have known of the action;¶

(dc) The complainant filing aStep 3, choice of process: The complainant may choose one of two options for how

their complaint will be addressed;¶

(A) Option 1, the complaint orant may request foran informal administrative review shall use the form the

Commission develops for this purpose;, as outlined in the Administrative Review Process section or;¶

(B) Option 2, the complainant may request a full evidentiary hearing. If the complainant selects this option, the

agency will send a hearing request, the completed complaint form and any other evidence presented to the

Oregon Office of Administrative Hearings (OAH), within 45 days. OAH will conduct the full evidentiary hearing.¶

(d) Step 4, submitting the complaint: The complainant must submit their complaint to the Director and indicate

their choice of process.¶

(2) Administrative Review Process¶

(ea) The Executive Director shall schedule the administrative review in consultation with the complainant and

notify the complainant in writing of the date, time and location for the administrative review;¶

(fb) The Executive Director shall hold the administrative review within a reasonable time of the complainant's

request, taking into consideration the length and complexity of the complaint;¶

(gc) The administrative review is informal and is conducted at the direction of the Executive Director or the

Executive Director's designee. The complainant will have an opportunity to ask questions and discuss the details

of the complaint;¶

(hd) The complainant shall advise the Executive Director if they intend to have advocates or legal counsel attend

with them;¶

(ie) The Executive Director shall issue a written decision on the complaint within 60 days of completing the

administrative review;¶

(jf) The complainant may request a full evidentiary hearing if the complainant is dissatisfied with the

administrative review decision by filing a written request for a hearing with the Executive Director within 30

(thirty) days after issuance of the administrative review decision. ¶

(23) FULL EVIDENTIARY HEARINGull Evidentiary Hearing¶

Page 18 of 21

(a) A Complainant may request a full evidentiary hearing in response to:¶

(A) Any Business Enterprise Program actions arising from the operation or administration of the program;¶

(B) A notice of intent to terminate the licensee's or vending facility manager's license; or¶

(BC) An administrative review decision. ¶

(b) Requests for full evidentiary hearings shall:¶

(A) Be submitted in writing to the Executive Director within 30 (thirty) days after the date the Executive Director

issues an administrative review decision, if that is the chosen process;¶

(B) Be submitted in writing to the Executive Director within 60 (sixty) days for vending facility managers from

another state who have received a notice denying licensure.;¶

(C) The complainant shall file the complaint and request for an OAH full and fair evidentiary hearing no later than

60 days after the action giving rise to the complaint or within 60 days of the date the complainant knew or should

reasonably have known of the action.\¶

(c) The Executive Director shall refer a request for a full evidentiary hearing toand the Oregon Office of

Administrative Hearinggrievance as presented by the complainant to the OAH, within 45 days.¶

(Ad) A full evidentiary hearing is conducted as a contested case hearing before an independent administrative law

judge under the procedures set forth in ORS 183.411 to 183.497. ¶

(Be) The administrative law judge issues a proposed final order in all Commission matters, except when a licensee

has defawithdrawn their complaint, or failed to show up for the schedulted hearing. If the licensee defaults, the

administrative law judge may issue a final order. ¶

(Cf) If the licensee is dissatisfied with the results of the hearing, the licensee may seek judicial review of the

decision under ORS 183.480 to 183.497; ory may request the convening of an arbitration panel as provided for in

34 CFR 395.13. ¶

(34) ARBITRATIONrbitration - A complainant may file a request for arbitration with the Secretary of Education as

authorized by Section 107 (d)1 of the Randolph-Sheppard Act, and 34 CFR 395.13 (a) of the regulations issued

pursuant to the Act.

Statutory/Other Authority: HB 3253 (2017)

Statutes/Other Implemented: ORS 183.411 to 183.497, ORS 346.510 to 346.570

Page 19 of 21

AMEND: 585-015-0050

RULE SUMMARY: Establishes a process for the Commission to approve vending facility mangers to subcontract

vending services. Language added to clarify “limited circumstances”.

CHANGES TO RULE:

585-015-0050

Subcontracting

(1) CRITERIA FOR APPROVAL - It is the intent of the Commission to fully support vending facility managers in

their direct operation of their assigned vending facilities, and in compliance with the Statement of Full-Time

Employment. In certathe following limited circumstances, the Commission may provide written approval for a

vending facility manger to enter into an agreement with an approved subcontractor. ¶

(a) A vending facility manager must meet the following criteria before the Commission will consider approval of an

agreement between a vending facility manager and an approved subcontractor:¶

(A) The vending facility manager meets minimum requirements of OAR 585-015-0045 vending facility manager

statement of full-time employment; and¶

(B) The vending facility manager does not subcontract any of the duties in OAR 585-015-0045 statement of full

time employment, excluding OAR 585-015-0045 item (1)(k), stocking and servicing vending machines.¶

(b) Additionally, the Commission shall also consider the following when determining whether to approve an

agreement between a vending facility manager and an approved subcontractor: ¶

(A) Quality of service that the vending facility manager and subcontractor are able to provide;¶

(B) Any product storage requirements;¶

(2) ESTABLISHMENT OF A LIST OF APPROVED SUBCONTRACTORS - With written approval from the

Commission, a vending facility manager may enter into an agreement with a subcontractor from the list of

approved subcontractors. The Commission shall establish a list of approved subcontractors with which a vending

facility manager may enter into an agreement. The Commission will ensure that when evaluating the qualifications

of potential subcontractors that the following criteria are considered: ¶

(a) Past experience; ¶

(b) Ability to perform in the geographical areas desired;¶

(c) Accessibility and use of technology;¶

(d) Commission rate;¶

(e) Availability of healthy and local products;¶

(f) Ability to repair equipment within the time frame specified in the permit/contract;¶

(g) Ability to replace equipment when needed in a timely manner;¶

(h) The availability of wholesale product in a geographic area that allows the greatest variety of product;¶

(i) If required by the permit/contract, the availability of fresh food items;¶

(j) The ability to offer healthy or local vending items;¶

(k) The availability of appropriate vehicles, including refrigeration if necessary, to transport products to the

vending facilities; ¶

(l) The ability to effectively service vending sites that are great distances apart, or require a long travel time;¶

(m) The ability to meet any other requirements unique to a vending facility; and¶

(n) The ability to provide the manpower to meet the demands of the facility, including an emergency situation.¶

(3) EXTENT OF SUBCONTRACTING ALLOWED - The subcontractor may provide for part of the following

services within the vending facility manager's assigned vending facility:¶

(a) Vending, to include provision, stocking, and maintaining vending machine equipment; and¶

(b) The operation of cafeterias. ¶

(4) APPLICABLE OPERATING AGREEMENTS - This rule is inapplicable to operating agreements executed as of

December 31, 2017. As of January 1, 2020, this rule is effective as to all operating agreements, regardless of when

they were executed.

Statutory/Other Authority: 183.341, HB3253

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Statutes/Other Implemented: 346.510-346.570

Page 21 of 21