March 10, 2025
Carol Dobak, Acting Commissioner
Rehabilitation Services Administration
United States Department of Education
400 Maryland Avenue, SW Room 4A212
Washington, DC 20202
Re: National Federation of the Blind’s Comments to Notice of Proposed Rulemaking: Amendments to Definitions and Related Provisions Under the Randolph-Sheppard Vending Facility Program
Dear Commissioner Dobak:
The National Federation of the Blind is the transformative membership and advocacy organization that advocates on behalf of blind people. We have affiliates in all fifty states and dozens of divisions, including a division of blind entrepreneurs participating in the Randolph-Sheppard vending program. We appreciate the opportunity to submit these comments in response to the Notice of Proposed Rulemaking (NPRM), published by the Department of Education (“the Department”), proposing amendments to the implementing regulations for the Randolph-Sheppard Act, 20 U.S.C. § 107 et seq (“the Act”).
The National Federation of the Blind supports the proposed changes that modernize and bring clarity to the current Randolph-Sheppard regulations. However, we oppose certain proposed changes, as set forth below, that will lead to greater confusion, create government inefficiencies, and potentially limit opportunities for blind entrepreneurs. And we are disappointed that the Department did not take this opportunity to address numerous more pressing issues relating to the Randolph-Sheppard program.
I. The regulations must further the purpose of the Randolph-Sheppard Act.
The purpose of the Act is “providing blind persons with remunerative employment, enlarging the economic opportunities of the blind, and stimulating the blind to greater efforts in striving to make themselves self-supporting.” (20 U.S.C. § 107(a)). The Act accomplishes its purpose by granting blind vendors priority to operate vending facilities on federal properties. The proposed regulations must be measured against Congress’s stated purpose. The question must be asked, “How does this change fulfill the purpose of the Act?”
II. The proposed changes to the definition of “Vending Facility” appropriately modernize that definition but should be further strengthened.
The Act defines a “vending facility” to mean “automatic vending machines, cafeterias, snack bars, cart services, shelters, counters, and such other appropriate auxiliary equipment as the Secretary may by regulation prescribe as being necessary for the sale of the articles or services described in section 107a(a)(5) of this title and which may be operated by blind licensees.” (20 U.S.C. § 107e(7)). The NPRM proposes modernizing that definition to include more examples. The National Federation of the Blind supports this change.
Micromarkets, retail stores, gift shops, catering, food trucks, pop-up restaurants, and laundry establishments already qualify as “vending facilities” under the statutory definition. The proposed change codifies this interpretation of the term “vending facilities” and, as a result, eliminates confusion and promotes blind vendors’ expansion into these businesses.
For that same reason, the Department should include some additional examples of establishments that provide services and meet the definition of “vending facility” to place a greater emphasis on the fact a “vending facility” does not sell only articles. For example, dry cleaning establishments, businesses that rent recreational equipment such as bicycles or ski equipment, rental storage units, spas or salons, dog grooming or boarding facilities, daycares, small engine repair shops, lawncare or janitorial businesses, etc., can all qualify as “vending facilities.” Including examples like these in the new regulations would further modernize how the term “vending facility” is codified to ensure it aligns with industry interpretations and evolving opportunities for blind vendors. The additional language would also provide clarity to other federal entities and state licensing agencies as to the types of businesses that may constitute a “vending facility.”
III. The proposed changes to the definition of “Vending Machine” are positive.
The NPRM proposes to remove the phrase “for the purpose of assigning vending machine income under the regulations in part 395” from the definition of “vending machine.” The National Federation of the Blind applauds this change, as the phrase is unnecessary and has led to confusion.
We also support including “electronic payment method” in the definition of “vending machine.” Today, the vast majority of purchases in vending machines are made using electronic payment methods. Although this has not presented a pervasive problem for blind vendors yet, the new language will modernize the definition of the term and reflects practical realities.
The National Federation of the Blind also supports removing the exemption of machines for recreational use from the definition of “vending machine” but for a different reason than that articulated in the NPRM. There was no statutory authority for such an exemption in the first instance.
IV. The proposed definition of “Articles” is unnecessary.
The NPRM proposes a new definition for the term “articles.” That change is unnecessary, as there has never been any confusion over what constitutes an “article” based on its ordinary, common-sense definition. Under the clear and unambiguous text of the Act, a vending facility may sell either articles or services; there is no reason to distinguish between the two terms.
V. Distinguishing “Articles” from “Services” is problematic.
The National Federation of the Blind vehemently opposes changing the definition of “vending machine” such that machines that sell only “articles”—as opposed to “services”—will qualify under the Act.
First, this proposed change directly conflicts with plain language of the Act. As noted above, the Act defines “vending facilities” to include “automatic vending machines . . . and such other appropriate auxiliary equipment as the Secretary may by regulation prescribe as being necessary for the sale of the articles or services” (20 U.S.C. § 107e(7)) (emphasis added). Thus, vending machines that sell services are contemplated in the statutory definition, and blind vendors have priority over such facilities. The Department has no authority to promulgate regulations that restrict that definition.
Second, the proposed change conflicts with the purpose of the Act, because it will—as a very real practical matter—restrict rather than expand opportunities for blind vendors.
The NPRM reads, “the best reading of the statute is that Congress intended for the term ‘vending facility’ to be construed broadly and in a manner capable of protecting the interests of blind vendors through potential evolutions in the concept of vending.”
Not only does the proposed definition of vending machines write “services” out of the plain language of the Act, it construes the Act’s definition narrowly, contrary to the purpose of the Act.
The proposed change also runs counter to the present reality of the types of businesses operated by blind vendors. For example, blind entrepreneurs operate Redbox machines that dispense DVD movies. No one has ever questioned whether such machines qualify as “vending machines” subject to Randolph-Sheppard priority. If the change the Department proposes were enacted, those blind vendors would lose opportunities to run those businesses and, even worse, whatever technology replaces the Redbox machines. DVDs are quickly becoming obsolete, as the entertainment industry is moving to streaming services and digital downloads.
Consequently, if that same Redbox machine transitions from dispensing DVDs to giving a code that allows the customer to stream or download a digital copy of the movie, it would no longer be a “vending machine” under the proposed definition. Vending will surely continue to evolve as it has in the last fifty years since the 1974 Amendments—as those amendments expressly acknowledged—so the Department must not propose changes that render static an ever-evolving area of technology. Blind vendors will miss out on far too many opportunities if the Department rigidly defines the term “vending machine” using an outdated conception of vending technology.
The proposed change will also lead to even greater confusion. In the past, Randolph-Sheppard blind entrepreneurs have operated coin-operated laundromats on federal property pursuant to the Act’s priority. Despite the NPRM proposing to add laundry establishments as an example of a “vending facility,” opportunities to operate laundromats will be lost if “services” are carved out of the definition of “vending machines.” On the one hand, the definition of “vending facility” says a laundry establishment is a “vending facility” but then the proposed rule turns around and says a laundromat, as a service, is not. Both statements cannot be true.
This proposed change purports to fix a problem that does not exist. The National Federation of the Blind is unaware of a single situation when anyone— an SLA, a federal entity, a blind vendor, a manufacturer, or a supplier—questioned whether a machine that dispensed services was a “vending machine” under the Act. In trying to fix this phantom problem, the Department would create a much bigger one. Absent any legal or practical basis for the proposed change, it must be stricken.
VI. The rule should not restrict priority on National Park Service and National Aeronautics and Space Administration properties.
The National Federation of the Blind is confused and troubled by the proposed changes that relate to the National Park Service (NPS) and the National Aeronautics and Space Administration (NASA).
At first glance, the proposed changes appear positive. In the explanation, the Department states that the priority applies unless all visitor services are administered under a single contract. In the example, the Department explains that if there are two contracts, then the Act’s priority must apply. But the proposed change to 34 C.F.R. § 395.30 differs significantly from what the explanation suggests:
(c) Priority in the operation of vending facilities on Federal property administered by the National Park Service or the National Aeronautics and Space Administration shall be given to blind vendors. To the extent that these agencies seek to provide visitor services that meet the definition of “vending facility” under 34 CFR 395.1(x) and are not combined with other visitor services that do not meet that definition, the priority for blind vendors applies.
This language is not only inconsistent with the explanation, it reinforces and expands the current exemption that NPS and NASA enjoy, for which there is no statutory basis. The Act provides no such exemption. Rather, the Act says the priority applies to all federal properties unless doing so is adverse to the interests of the United States. See 20 U.S.C. § 107(B). In the absence of a statutory exemption, the priority applies with full force to NPS and NASA properties.
Nevertheless, the proposed rule would grant a blanket exemption to the Act’s priority for all NPS-controlled areas—it is not limited to national parks. The NPRM offers no basis for granting an exemption for research centers and training centers operated by NPS. Absent any legal or practical basis for this exemption, the Department should eliminate it before publishing the final rule.
The reference to “visitor services” should also be removed, because it could lead someone to conclude that the Act’s priority only applies to services to the public. The Department has consistently rejected that interpretation in the past—and many blind vendors’ facilities are not open to the public—but as it relates to parks, blind vendors could be limited in this way if this rule stands as written. If a contract is awarded for lawncare, janitorial services, managing a vehicle fleet, and servicing vending machines, the Act’s priority applies. But under the proposed language, it would not. That proposed change serves no purpose and would unnecessarily limit opportunities for blind vendors on NPS-controlled property. Thus, the word “visitor” should be removed.
The proposed changes to this section will also create significant confusion. There could be multiple contracts that combine services that do not meet the definition of “vending facility,” and based upon the wording of the proposed regulation, the Act’s priority would not apply. For example, a contract may include providing tours, providing informational lectures, managing a vehicle fleet, and operating a gift shop. As the proposed rule is written, the priority would not apply because providing tours, providing lectures, and managing a vehicle fleet, etc. are not vending facilities.
VII. Electric vehicle charging stations are a missed opportunity.
By not addressing whether electric vehicle (EV) charging stations are covered under the Act, the NPRM misses a huge and important opportunity.
In 2022, the United States Department of Transportation (DOT) initiated discussions to clarify whether an electric vehicle charging station is a “vending machine” subject to priority under the Act. The Department of Transportation indicated that it had requested a Notice of Interpretation that could be published in the Federal Register. Instead, the Department elected to issue an NPRM, which was an unnecessary and more cumbersome way to resolve the question at hand. The NPRM itself illustrates the point. A full three years after the DOT asked the question, the Department has finally published proposed regulations, and they say nothing on this important topic. The silence is confounding.
This silence means, in essence, that the Department would rather leave the matter unresolved and/or defer to ad hoc arbitration panels and federal courts to issue conflicting opinions.
If not corrected, the Department’s inaction will have widespread consequences for blind vendors and SLAs. If a federal entity has an EV charging station on-site and employees are allowed to use it and the federal entity receives a commission, the Act’s income-sharing provisions are invoked. But if they collect less than $3,000 per year in profit or commissions, the income sharing provisions do not apply. If an agency is concerned about paying a commission on the charging of its own vehicle fleets, presumably no transactions occur when government vehicles are charged, so those charging stations would be excluded. The National Federation of the Blind cannot think of any legitimate reason why a federal entity would object to clarification from the Department on this matter.
The NPRM must answer this question: Is an EV charging station a vending machine? The Department could include an EV charging station as an example in the updated definition of “vending machine,” or it could clarify the matter another way. The alternative—remaining silent— is a dereliction of duty and will force litigation that will cost SLAs, blind vendors, and taxpayers alike hundreds of thousands, if not millions, of dollars.
VIII. The proposed regulations miss other opportunities.
The Randolph-Sheppard community has been frustrated for years over the Department’s failure to modernize the regulations. We were pleased to see the NPRM published but disappointed to find that some of the proposed changes exacerbate rather than mitigate that frustration. Of all the things the Department could have done to clarify the law and modernize the regulations that would have made a real difference in terms of creating opportunities, reducing litigation, and increasing government efficiencies, it chose relatively insignificant areas to address.
The NPRM could and should address the following other topics:
- A clear definition of the term “operate a vending facility”;
- Confusion over satisfactory sites;
- Whether the Act’s priority applies when there are less than 100 federal employees and/or 15,000 square feet;
- The outdated requirement that a federal property manager provide only a minimum of 250 square feet including storage as a satisfactory site when the Act uses terms like “adequate” and “sufficient,” as 250 square feet in most cases is neither adequate nor sufficient and limits opportunities;
- The application of the priority in 34 C.F.R. § 395.33 to the operation of cafeterias, especially military dining contracts and contracts pertaining to the operation of cafeterias, which would help eliminate expensive litigation that unnecessarily costs state and federal taxpayers millions of dollars and would enhance opportunities for blind vendors;
- The application of the Act’s priority for traditional vending facilities on properties controlled by the Department of Defense or Department of Veterans Affairs;
- The role teaming partners and third-party vendors may play in the operation of vending facilities;
- Confusion over the provision in 34 C.F.R. § 395.32(i) that exempts the exchanges from sharing vending machine income “within operated sales outlets”;
- Confusion over the definition of “direct competition” in 34 C.F.R. § 395.1(f), which references competition from vending facilities and not just vending machines;
- Issues surrounding the definition of “equipment” and the prior approval requirement, both of which are burdensome on SLAs and blind vendors, create greater government inefficiencies, and could be remedied through regulation, which would give states more flexibility and enhanced efficiencies at both the federal and state level;
- The authority of arbitration panels to order remedies when a federal entity violates the Act;
- The inequities of the evidentiary hearing process that is biased against blind vendors;
- The lack of standards for SLAs (the law is prescriptive but provides no accountability mechanism) to ensure SLAs perform responsibilities outlined in the Act and current regulations;
- How the Commissioner will ensure the uniform application of this chapter by each State agency, which is not currently being done;
- Confusion over conflicting messages being sent to SLAs regarding use of state unassigned funds that are generated and maintained in most cases by staff paid with set aside or federal dollars;
- The 43-year silence over the interface of the Kennelly Amendments with the Randolph-Sheppard Act; and
- The absence of a federal definition of “active participation.”
Had the foregoing topics been addressed, the Department could have provided real clarity and strengthened the program. The proposed changes, by contrast, create more confusion and fail to advance the program. It is not too late for the Department to address some, or all, of those areas and we strongly urge it to do so.
The National Federation of the Blind appreciates the opportunity to comment on these proposed regulations and urges the Department of Education to make revisions as appropriate.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind