N.M. Admin. Code § 9.4.5.12

Current through Register Vol. 35, No. 21, November 5, 2024

Section 9.4.5.12 - STATE LICENSING AGENCY ORGANIZATION

A.Organization and operation of the state licensing agency:

(1) The state licensing agency (SLA) shall:

(a) cooperate with the commissioner in applying the requirements of the Randolph-Sheppard Act in a uniform manner;

(b) take effective action to carry out full responsibility for the supervision and management of each vending facility in its program in accordance with the Randolph-Sheppard Act, the regulations at 34 CFR 395.1, the Horace DeVargas Act, Section 22-14-24 to Section 22-14-29, NMSA 1978, the SLA's established rules and regulations, and the terms and conditions governing the permit for establishment of a vending facility;

(c) submit promptly to the commissioner for approval a description of any changes in the legal authority of the state licensing agency, its rules and regulations, blind licensed manager 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; and

(d) be reasonable, if it intends to set aside, or cause to be set aside, funds from the net proceeds of the operation of vending facilities and obtain a prior determination by the commissioner that the amount of such funds to be set aside is reasonable.

(2) The business enterprise program is a program component of the New Mexico commission for the blind.

(a) Responsibility for supervision of commission personnel engaged in the administration of the business enterprise program rests with the assistant director of the commission for the blind.

(b) Day-to-day administration of vending facilities is the responsibility of the administrator of the business enterprise program.

(c) Monthly reports received from licensed managers (see Appendix 9) are audited by the BEP manager and posted by the fiscal office. These reports must be received by the BEP administrator by the 25th of the following month. All monies received from licensed managers are deposited to the set-aside fund by the fiscal office of the commission for the blind.

(d) The commission for the blind provides vocational rehabilitation for eligible blind persons under an approved state plan. The vocational rehabilitation program and the business enterprise program are closely coordinated so as to assure the maximum utilization of the BEP as an employment resource for vocational rehabilitation consumers for whom such employment is considered suitable, and to assure that all persons placed in the business enterprise program will receive the vocational rehabilitation services which they may require.

(3) Central office staff: The program is administered by the BEP administrator who reports directly to the assistant director of the SLA. The manager is assisted by BEP business consultants.

(4) Field staff: The state is divided into specific geographic areas for the purpose of administering the business enterprise program. A BEP business consultant is assigned to each designated area to provide the link between the licensed managers and central office, and is authorized to provide the services and obligated to assist and support compliance with the rules and regulations of the rehabilitation services administration and the SLA relative to business enterprises established under the Randolph-Sheppard and/or Horace DeVargas Acts.

(5) Licensed managers: The individual enterprises established by the BEP are managed by licensed managers who derive their livelihood from net profits of the operations. Licensed managers are subject to instructions, policies, rules and regulations of the BEP program, but are not employees of the program, the SLA or the state of New Mexico. They do, however, have a contractual relationship with the SLA and are required to manage the facilities and/or operations in accordance with established rules and regulations. All licensed managers will be treated equally regardless of the type of property in which the facility is located; i.e., federal, state or other.

(6) Duties of the business enterprises program manager: The duties of the business enterprises program manager are:

(a) assures compliance with all applicable rules, regulations and statutory provisions;

(b) prepares program budgets and approves expenditures, maintains records for the business enterprise program;

(c) plans for the development and expansion of the program and upgrading of existing facilities;

(d) drafts program policy, operating instructions and regulation changes as needed to make the program more efficient or to conform to current legislative mandate;

(e) promotes the program to the general public;

(f) actively participates with the committee of licensed managers in accordance with 34 CFR 395.14;

(g) procures facilities through the SLA. The SLA will pursue locations in federal, state, county, municipal and private buildings whenever it appears the location will enable a blind person to make a living. The selection of suitable locations for vending facilities is made according to standards which afford the most favorable earning potential to the prospective licensed manager.

(i) Business enterprise locations are selected only after it has been determined that the establishment of a vending facility at the location will contribute to the maximum development of economic opportunities for the licensed manager and will provide for the most productive utilization of program assets.

(ii) This determination is made on the basis of a comprehensive economic survey and evaluation of the location.

(iii) The evaluation of locations for vending facilities takes into consideration such factors as building population, traffic, competition, continued availability, type of premises, potential return upon investment, and other applicable factors.

(iv) SLA resources are available to establish the facility successfully.

(v) Lastly, the plan is brought before the committee of licensed managers to notify them, and to solicit their thoughts regarding operations for a licensed manager in the facility, including equipment, set-up and efficiency;

(h) conducts public relations activities which promote a positive image of the program to existing and potential host organizations, rehabilitation staff, consumers and the general public;

(i) negotiates the terms and conditions of building permits with property control managers;

(j) negotiates and executes operating agreements with licensed managers;

(k) coordinates and supervises a training program for applicants;

(l) administers, with the participation with the committee of licensed managers, the system for initial assignment or transfer of licensed managers;

(m) in conjunction with the business consultant, completes the facility visit summary to assist in evaluation of the licensed manager's performance.

(7) Duties of the BEP business consultants: The duties of the BEP business consultants are:

(a) assist each licensed manager in operating the business enterprise within applicable rules and regulations;

(b) oversee the development of new installations;

(c) provide management services to licensed managers;

(d) collect and analyze data on the operation of each business enterprise in order to provide technical assistance and for monitoring federal and state reporting requirements;

(e) communicate with the committee of licensed managers on various operations.

(8) Guidelines for communication: Communication of information is to occur so that the best interests of the business enterprises program are served. This is best accomplished when information is shared and acted upon by those who can respond most effectively in the circumstances. The administrative staff of the SLA is responsible for assuring that active communication among SLA staff and licensed managers contributes to the effective operation of the entire business enterprises program. Management services and operational matters are best handled by first communicating with the appropriate business consultant. Paragraphs (A) through (C) of this Subsection [now Subparagraphs (a) through (c) of Paragraph 8 of Subsection A of 9.4.5.12 NMAC] describe appropriate levels to which various types of communication should be directed.

(a) Communications originated by a licensed manager: The licensed manager is to maintain appropriate and professional communication with customers and building management personnel. The point of communication for licensed managers with the SLA is the business consultant. Circumstances in which a licensed manager may contact the business enterprises program manager are:

(i) when a problem cannot be solved through normal channels;

(ii) when there is a specific complaint concerning the conduct and/or behavior of a business consultant; and/or

(iii) when an emergency develops and the business consultant is not available.

(b) Business consultant communication: A business consultant is expected to maintain open and ongoing communications with all the licensed managers in his/her area. Should a situation require immediate action beyond the business consultant's authority, he/she may contact the proper administrative official. All significant information will be communicated to the BEP administrator at the earliest opportunity.

(c) Written communications: Any communication of major consequence is to be documented in writing. Situations needing immediate action are to be addressed promptly by the appropriate official and subsequently documented in writing. Records of written documentation will be maintained in accordance with agency policy. Written requests require written responses.

B.Management services provided by the state licensing agency:

(1) Overview of management services: Management services include supervision, inspection, quality control, consultation, accounting, regulating, inservice training, and other related services provided on a systematic basis to support and improve business enterprises operated by licensed managers. "Management services" does not include those services or costs which pertain to the ongoing operation of an individual facility after the initial establishment period.

(2) Technical assistance services: The SLA shall provide each licensed manager with:

(a) recommendations for optimizing facility profitability;

(b) recommendations and feedback on facility operations including quality, service and cleanliness;

(c) possible solutions to problems recognized by the licensed manager or brought to the licensed manager's attention by BEP staff or the property managing agency;

(d) providing career development and inservice training;

(e) explanation of the SLA's procedures, policies and standards.

(3) Responsibilities of the business consultants (BEP staff): Business consultants are required to assist licensed managers in their district to meet business enterprise program requirements through review and consultation on:

(a) compliance with applicable laws and program regulations;

(b) hiring employees in accordance with rules and regulations;

(c) compliance with all conditions on the licensed manager's license;

(d) assuring that merchandise is:

(i) sold in accordance with the property managing agency's agreement;

(ii) of high quality, adequately stocked and properly displayed.

(e) monitoring performance to ensure:

(i) standards for employee personal appearance and hygiene;

(ii) quality customer service;

(iii) maintenance of sanitation and safety standards;

(iv) proper maintenance of equipment;

(v) communications and working relationships between the licensed manager and customers, suppliers, employees, property managing agency and the general public;

(vi) SLA and other agency requirements for record keeping; and

(vii) licensed manager performance evaluations.

(4) BEP staff facility visits: BEP consultants shall visit facilities as often as necessary to insure the continued success of the facility. The BEP consultants will work with licensed managers to maximize profits. Each time the consultant visits a facility, he/she will complete a facility visit summary.

(5) Assistance of vocational rehabilitation staff: At the request of the business consultants or other BEP staff, rehabilitation staff will provide necessary assistance to the program when the best interest of the licensed manager or the SLA needs such assistance.

(6) SLA provision of training: The SLA, with the active participation of the licensed managers committee, shall develop and maintain training, retraining and career development programs for all persons who are either licensed managers or applicants for licensed managers. The SLA assures that effective programs of vocational and other training services, including personal and vocational adjustment, books, tools and other training materials shall be provided to all applicants as vocational rehabilitation services. The training program shall be open to all legally blind unemployed persons who meet the application and eligibility requirements in Subsection 15.1.2 of this rule (9 NMAC 4.5) [now Paragraph (2) of Subsection A of Section 9.4.5.15 NMAC]. Minimally, the training shall consist of the following.

(a) This training is open to all candidates for the BEP who have completed the application process, met all eligibility requirements as listed in Subsection 15.1.2 of this rule [now Paragraph (2) of Subsection A of Section 9.4.5.15 NMAC], and been accepted into the program;

(b) Assessment and provision, as necessary, of skills of blindness: Blindness skills of each applicant shall be assessed by staff during a minimum of two weeks' attendance at the New Mexico orientation center for the blind, who shall make recommendations for training based upon skills deficiencies, if any; and

(c) Completion of approved culinary arts program at any appropriate facility to be determined on a case-by-case basis (approximately 16 weeks or one trimester). Previous successful food service experience will be taken into account by the facility in assessing training needs and by the SLA for the final recommendation on granting of a license;

(d) On-the-job training with a licensed manager consisting of food purchasing, menu planning, precosting entrees, food preparation and handling; accounting procedures, inventory control, daily sales reports, monthly reports and cash register operation; and, sanitation, housekeeping and labor scheduling. On-the-job training is expected to be completed concurrently with the culinary arts program. The length of time of on-the-job training will be determined by SLA staff and may be extended by the SLA staff, if so determined by his or her counselor, the committee of licensed managers, trainer and/or SLA staff for the success of the licensed manager in his/her new facility. The average length of time for on-the-job training is six to nine months.

(7) The SLA shall certify as qualified to operate a vending facility all trainees whom the BEP manager has determined to have successfully completed the training program. Once the trainee successfully completes the training program and receives his/her license to operate a business enterprise, he/she will be placed on the ready for assignment list.

(8) Failure to complete the training: If, during the course of the training, it is the trainers' opinion that this consumer cannot satisfactorily complete the BEP training program, the BEP manager will review the case upon the written recommendation of the trainers. If the situation warrants, the BEP manager may terminate the consumer's training. The manager will immediately notify the consumer and the consumer's vocational rehabilitation counselor about the termination of the training program and the reasons for the action.

(9) Retraining and career development: Career development training including further education and additional training for improved work opportunities shall be provided for all licensed managers. Opportunity for retraining shall be provided by the SLA, as needed, and shall be made available:

(a) upon a licensed manager's request;

(b) whenever the SLA finds that the retraining is necessary to enable the licensed manager to operate the vending facility successfully;

(c) any licensed manager undergoing retraining for any purpose including improvement of skills or for career development in the program will continue to have responsibility for the vending facility to which he/she is assigned, and the operating agreement for such manager shall remain in effect while he/she receives retraining or career development services;

(d) post employment services will be provided to licensed managers as vocational rehabilitation services as necessary to assure that the maximum vocational potential of such managers is achieved and suitable employment is maintained.

C.State licensing agency responsibilities for business enterprise operations.

(1) The SLA will provide for an annual review, including input from all vendors, of the BEP procedures manual for possible updates.

(2) Business enterprise equipment and fixtures: The SLA will ensure that each BEP facility has essential equipment so as to give reasonable assurance of satisfactory operation by the licensed manager.

(3) Additions, deletions or modifications to equipment: The licensed manager will make no additions, deletions or modifications to the facility and its operation, in the form of equipment, fixtures or facilities, without first obtaining written authorization from the SLA.

(4) Maintenance and replacement of vending facility equipment: The SLA 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 (34 CFR 395.10).

(5) Purchase of equipment by SLA: In order to lessen the budget impact of various requests for major equipment throughout the fiscal year, licensed managers shall make their equipment requests in writing to the licensed managers committee, which shall review the list, and organize purchases to ensure cost-effectiveness (volume buying of duplicate items) for the SLA expenditures.

(6) Initial inventory and supplies: The counselor shall provide a predetermined amount for funds for purpose of initial inventory of merchandise for resale for operating a facility by a licensed manager. The original dollar amount of the vocational rehabilitation funds or inventory allocated by the counselor for start-up costs should remain in the facility at the time of the manager's departure. Any initial inventory needed that exceeds the predetermined amount will be provided by the set-aside fund. Additional start-up funds provided by the BEP set-aside fund will be repaid to the set-aside fund in an amount agreed to by the BEP manager and the licensed manager.

(7) Existing inventory upon transfer or dismissal: The SLA will oversee the following procedures:

(a) the outgoing licensed manager or a representative is present and is responsible for making an accurate, comprehensive listing of the inventory with prices, proof of prices (invoices) and extending the inventory;

(b) the incoming licensed manager or a representative is also present and can exercise his/her rights as described in Subsection 18.2 of this rule [now Subsection B of Section 9.4.5.18 NMAC];

(c) an SLA representative is present to oversee the process.

(8) Cleaning of facility during transfer: Upon leaving a facility, it is the responsibility of the outgoing manager to fully clean the facility and its equipment. If the outgoing manager fails to comply, the SLA will hire a cleaning company to clean the facility at the outgoing manager's expense. The cleaning cost will be deducted from the inventory being purchased by the SLA. If the amount exceeds the amount of the inventory being purchased, or if the outgoing manager takes his inventory, the balance forward must be paid prior to reinstatement in the program or before transferring to another facility.

(9) Assignment, transfer of licensed managers: The SLA will carry out assignment and transfer of licensed managers through facility vacancy announcements, eligibility verification, and the establishment and convening of an evaluation committee.

(a) Facility vacancy announcement:

(i) The SLA will develop minimum qualifications specific to the characteristics of the vacant enterprise. These minimum qualifications will establish the level of accomplishment expected of the applicant for a vacant facility in each of the areas to be considered by the evaluation committee as described in Section 36 [now 9.4.5.36 NMAC]. Priority will be given licensed managers whose business enterprise was lost due to natural disaster or other unpredictable circumstance beyond control of the licensed manager.

(ii) The SLA shall develop a vacancy announcement to be sent to all licensed managers when a facility becomes available. The vacancy announcement must include location, type of enterprise, and general description of operations; minimum qualifications; for a new enterprise, estimates of monthly net sales based upon potential patronage, with the disclaimer this estimate is not a guarantee of sales; and application due date.

(b) Eligibility verification and referral to evaluation committee: The SLA shall provide files of all bidders to the members of the evaluation committee, that will review all applicants considering the criteria below.

(i) The files will contain information including but not limited to managerial and other skills and abilities demonstrated by the licensed managers under consideration as they fit the available facility, including handling labor needs and managing staff; complexity of financial skills needed for food production; and customer relations.

(ii) previous records of the licensed manager under consideration, including consideration of timeliness and accuracy of record keeping; customer satisfaction; improvements in profits and customer base; safety and sanitation inspections; fee, taxes, and bill payment history; initiative shown in upgrading skills; regularity of work attendance; compliance with applicable rules and laws; and past evaluations by the SLA, and/or those from previous work histories, including references. Initial assignments shall give consideration to the unemployed qualified licensed manager.

(iii) seniority of eligible licensed manager.

(iv) licensed managers on probation may not bid for another facility.

(c) Evaluation committee, recommendation for assignment: The evaluation committee, consisting of an equal number of licensed managers and SLA staff, will consider applicants for initial assignments and transfers. The committee shall make recommendation to the executive director of the SLA.

(10) Vending machine income:Vending machine income will be managed in accordance with the following Paragraphs A through F [now Subparagraphs (a) through (f) of Paragraph 10 of Subsection C of 9.4.5.12 NMAC].

(a) Vending machine income (commission) from vending machines on federal property which has been disbursed to the SLA by a property manager under the vending machine income sharing provisions of the federal regulations shall accrue to each licensed manager operating a vending facility on federal property in an amount not to exceed the average net income of the total number of licensed managers, as determined each fiscal year on the basis of each prior year's operations, except that vending machine income shall not accrue to any licensed manager in any amount exceeding the average net income of the total number of licensed managers in the United States.

(b) No licensed manager shall receive less vending machine income than he/she was receiving during the calendar year prior to January 1, 1974, as a direct result of any limitation imposed on such income under this ceiling (34 CFR 395.32).

(c) No limitation shall be imposed on income from vending machines combined to create a vending facility if such facility is maintained, serviced or operated by a licensed manager; however, the SLA will retain the vending machine commissions disbursed by a federal property manager in excess of the amounts eligible to accrue to licensed managers (34 CFR 395.32(b); 34 CFR 395.8(b)).

(d) The SLA will disburse vending machine income (royalties) to qualifying licensed managers on at least a quarterly basis (34 CFR 395.8(b)).

(e) Vending machine income retained by the SLA will be used in accordance with applicable federal regulations (34 CFR 395.8(c)).

(f) Unassigned income from non-federal property is used to develop and enhance BEP facilities as designated by state laws and regulations.

(11) Due process: The SLA provides procedures for fair hearings of licensed managers' grievances. These procedures provide each licensed manager the opportunity to seek remediation of dissatisfaction with any SLA action arising from the operation of the BEP, and are set forth in the following Subsections (A) through (D) [now Subparagraphs (a) through (d) of Paragraph 11 of Subsection C of 9.4.5.12 NMAC].

(a) Informal administrative review: It is the policy of the SLA to resolve complaints in an expeditious and facilitating manner. These resolutions shall be accomplished through the informal administrative review process whenever possible.

(i) A licensed manager who is dissatisfied with any action arising from the operation or the administration of the vending facility program may ask for an informal administrative review of the action by filing a written request with the executive director of the commission. The written request for an informal administrative review, filed by the licensed manager or his designee (who may be a member of the committee of licensed managers), must specify the action or actions with which the manager is dissatisfied, and must be received by the executive director within 15 calendar days of the occurrence of the action with which the manager is dissatisfied.

(ii) Informal administrative reviews are conducted by the SLA staff person, appointed by the executive director, who is closest to the problem but not involved in the action resulting in the complaint, and who can resolve the complaint in the most expeditious manner.

(iii) Within 15 calendar days after receipt of the written request, the executive director shall convene an administrative review conference which shall include the licensed manager and his or her representative, if so designated, vending facility program staff, and the executive director's appointee. Written notice of the time and place of the administrative review shall be sent to the manager and his/her representative, if so designated, by the executive director.

(iv) The informal administrative review shall be held at a time and place convenient to the manager requesting such review. The administrative review shall normally be held during regular SLA working hours.

(v) The results of the informal administrative review are to be reported in writing to the BEP administrator, with a copy going to the licensed manager.

(b) Full evidentiary hearing: When a licensed manager is dissatisfied with any SLA action arising from the operation or administration of the vending facility program, such manager may file a complaint with the SLA requesting a full evidentiary hearing. Such complaint should identify all of the disputed issues of fact to be resolved in an evidentiary hearing. The following procedures have been adopted by the SLA to provide a manager with a full evidentiary hearing:

(i) Licensed managers shall be informed, in writing, of their right to and the procedures to be followed in obtaining a full evidentiary hearing at the time they are licensed to operate a facility.

(ii) The manager, or his or her chosen representative, shall request a full evidentiary hearing in writing within 15 calendar days of the receipt of the commission's determination as a result of the informal administrative review process.

(iii) The written request for a full evidentiary hearing must be transmitted to the executive director of the commission either personally or by certified mail, return receipt requested. The request may be transmitted through the committee of licensed managers in accordance with these rules and regulations.

(iv) A manager is entitled to legal counsel or other representation in a full evidentiary hearing. Such counsel shall be at the manager's own expense or he/she may obtain any legal services available in the community at little or no cost, such as legal aid society, neighborhood legal services, or any other sources able and willing to provide representation.

(v) Reader services or other communication services shall be arranged for the manager should he so request. Transportation costs and per diem shall be provided to the licensed manager during the full evidentiary hearing if the location of the hearing is in a city other than the legal residence of the manager.

(vi) The hearing will be scheduled by the SLA for a time and place convenient and accessible to the licensed manager and the SLA staff involved in the hearing. The licensed manager will be notified of the place and time of the hearing and the right to be represented by legal or other counsel, in writing, at least 15 calendar days prior to the date set for the hearing. The licensed manager shall be provided a copy of the hearing procedures and other relevant information necessary to enable him or her to prepare his/her case for the hearing.

(vii) The hearing will be conducted by an impartial and qualified hearing officer with no involvement or vested interest in the SLA action at issue or with the operation of the affected business enterprise. The presiding officer will conduct the hearing in accordance with state and/or federal laws and rules governing the conduct of such proceedings. In any case, the hearing will be conducted in a manner that avoids delay, maintains order and provides for a full recording and reporting of the proceedings so that a full and true disclosure of the facts and issues occurs.

(viii) The overall time limit for processing a full evidentiary hearing is 90 calendar days except when a hearing is delayed for illness of the licensed manager; or delay in obtaining evidence because of circumstances beyond the control of the licensed manager or the commission. The time limit applies to the period extending from the date the original request is received by the executive director until the date of the decision.

(ix) The federal rules of evidence do not apply to full evidentiary hearings conducted pursuant to this section. Both the licensed manager and the SLA are entitled to present their case by oral or documented evidence to submit rebuttal evidence and to conduct such examination and cross-examination of witnesses that may be required for a full and true disclosure of all facts bearing on the issue. All papers and documents introduced into evidence at the hearing shall be filed with the hearing officer and provided to the other party. All such documents and other evidence submitted shall be open to examination by the parties and opportunities shall be given to refute facts and arguments advanced on either side of the issue.

(x) Transcripts shall be made of the oral evidence and shall be made available to the parties. The SLA shall pay all transcript costs and shall provide the licensed manager with at least one copy of the transcript. The transcripts of testimony, exhibits and all papers and documents filed in the hearing shall constitute the exclusive record for the decision. The decision shall also set forth any remedial action necessary to resolve the issues and dispute. The hearing officer's determination will be based upon the facts as presented by both parties and upon applicable law, and the existing rules of the SLA. The hearing officer does not have the power to rule upon the legality or construction of the rules themselves. The officer's decision will determine the relevant issues and the facts to be ruled upon.

(xi) The hearing officer shall make a written report of the evidence presented, the laws and rules used in determining a resolution, and the resolution itself. This report shall be issued to the BEP manager and the licensed manager, or his/her authorized representative, within 20 working days of the receipt of the official transcript. The decision shall be mailed promptly to the licensed manager and the SLA. If the licensed manager is dissatisfied with the decision, he or she may request that the secretary (USDE) convene an arbitration panel.

(c) Arbitration of complaints after the evidentiary hearing: The licensed manager has the right to file a request for arbitration with the secretary (USDE) if dissatisfied with the outcome of the evidentiary hearing. By filing a complaint with the secretary, the manager consents to the release of information necessary for the conduct of an ad hoc panel.

(i) The complaint must be filed in writing and must contain a statement of grievance; the date and place of the full evidentiary hearing; a copy of the decision and what actions have been taken because of the decision; the part of the decision which is causing the dissatisfaction and reason for the dissatisfaction; and a statement as to what is required to remedy the situation.

(ii) The secretary (USDE) will convene an arbitration panel after receiving a complaint which meets the requirements in the abover Paragraph 12.3.10.C.1 of this rule [now Item (i) of Subparagraph (c) of Paragraph (11) of Subsection C of 9.4.5.12 NMAC]. The decision of the panel will be final, except as provided for in 20 U.S.C. Section 107d-2. The secretary will pay the reasonable costs for the arbitration. An abstract of the arbitration decision will be published in the federal register. The panel will be convened by the secretary in accordance with (1) through (3) of this Subparagraph.

(1) The SLA shall designate one member of the panel.

(2) The licensed manager shall designate one member of the panel.

(3) The designees of the SLA and the licensed manager shall together designate a third panel member who shall not be an employee of the SLA or its parent agency. This member shall be the chairperson of the panel.

(iii) If either the SLA or the licensed manager fails to designate a member of an arbitration panel, the secretary shall designate such member on behalf of such party.

(d) Arbitration of SLA complaints:

(i) Arbitration of SLA complaints against federal agencies. The SLA is to resolve problems related to the operation of a business enterprise with the full participation of the licensed manager and the appropriate property manager. The SLA may file a complaint with the secretary (USDE) if it determines that an agency controlling federal property is not complying with the provisions of the Randolph-Sheppard Act or United States department of education regulations. After the complaint is received, the secretary will convene an arbitration panel. If the panel finds that the federal agency is in violation of the act or USDE regulations, that federal agency will be notified that it is expected to correct the violation according to 20 U.S.C. Section 107 d.

(ii) The secretary pays the reasonable costs of this arbitration. The decision resulting from the arbitration will be published in the federal register. The arbitration panel will be convened by the secretary in accordance with (1) thorugh (3) of this Paragraph.

(1) The SLA will designate one member of the panel.

(2) The agency controlling the federal property over which the dispute arose will designate one member of the panel.

(3) The designees of the SLA and the agency controlling the property will designate a third member who is not an employee of the agency. This member will chair the panel.

N.M. Admin. Code § 9.4.5.12

4/15/97; Recompiled 10/01/01