December 22, 2016
Federal Highway Administration
U.S. Department of Transportation
Attn: Gregory G. Nadeau, Administrator
21400 Ridgetop Circle #300
Sterling, VA 20166
Dear Mr. Nadeau,
These comments are submitted on behalf of the National Association of Blind Merchants (NABM), a division of the National Federation of the Blind. NABM is concerned about the impact that any expansion of commercial activity will have on the livelihoods of blind entrepreneurs and revenue currently being generated for use by state licensing agencies under the Randolph-Sheppard Act.
Currently, state licensing agencies operate vending machines at 1,098 interstate rest areas across the country. 363 blind entrepreneurs make their living servicing vending machines in almost 700 of these locations. The state licensing agencies utilize third party vendors in the remaining rest areas. Revenue from the third party vendors is used to fund the program for all blind vendors in a state. The total revenue collected nationally from third party vending is approximately $5 Million annually. That is not a large sum of money when you consider all 50 states but the revenue is significant for the individual states who rely on these dollars to operate their program. Many states use these dollars to match with federal Vocational Rehabilitation dollars to enhance services to all people with disabilities. Federal dollars can be matched at a 78.7%/21.3% ratio which is a tremendous boost for state budgets. Protecting the livelihoods of the blind entrepreneurs and the income stream for the state programs for the blind must be priorities when considering expansion of commercialization.
NABM’s basic position in regards to commercialization at the interstate rest areas is that the state licensing agencies should have priority for any retail operations at the rest areas. This is consistent with current practices on most federal and state properties. The priority should be to create entrepreneurial opportunities for persons who are blind.
We would like to address the specific questions you posed:
Considering advances in technology, what defines a vending machine in today’s world?
The U.S. Department of Education has defined a “vending machine” at 34 C.F.R. 395.1(y) as “a coin or currency operated machine which dispenses articles or services…” The definition goes on to exempt stamp machines, pay telephones, and machines for recreational use from this definition. This definition was promulgated in 1975 but still generally reflects the meaning of the term today. Yes, many vending machines today utilize cashless payment methods but it is still the currency that the cashless systems represent that drives the machines.
The FDA also recently defined vending machines in § 101.8(a) of 76 C.F.R 19238 as “a self-service device that, upon insertion of a coin, paper currency, token, card, or key, or by optional manual operation, dispenses servings of food in bulk or in packages, or prepared by the machine, without the necessity of replenishing the device between each vending operation.
NABM believes that both definitions are adequate and appropriate. If DOT elects to define the term for purposes of the interstate rest areas, we urge that the definition is consistent with these two definitions and protects and expands opportunities for blind entrepreneurs operating pursuant to the Randolph-Sheppard Act.
You have specifically asked whether or not a micromarket is a vending machine. NABM believes the question is moot based upon the fact the FDA is currently working on guidelines that will presumably make the placement of micromarkets in public areas illegal. The Council of Conference for Food Protection (CFP) formed the Unattended Food Establishment Committee to develop recommendations on whether or how the food code should be applied to unattended food establishments (micromarkets). The CFP is recommending that micromarkets only be allowed in areas with controlled entry which is defined as “restriction or limitation of access for a place or a location.” The intent is to minimize the threat of food tampering and/or contamination. It is a public health issue. Even without any current regulations or guidance, micromarkets in today’s industry are generally located in areas with restricted access and not open to the public. They are also unattended in part so they can be accessed 24 hours per day. At an interstate rest area, there would have to be an on-site attendant and the market could likely not be open 24/7. The on-site attendant moves the operation into more of a C-Store and all of the rules change. Current law strictly prohibits such operations and NABM would be opposed to changing the law to accommodate such manned operations.
What types of “media” should be considered as promoting tourism in the State?
The term “media” references means of communication with large numbers of people. We would consider this to include television, radio, newspapers, magazines, signage, brochures, advertising, Internet, etc.
Should local agricultural products be considered media that promotes tourism?
NABM believes that it would be a stretch to consider agricultural products as a type of media. The plain definition of the word “media” refers to communication and leaves little room to include such products. The advertising of such products, however, would be compliant. For example, if the State of Georgia wants to promote their peanuts at a rest area, then advertising peanuts would be appropriate. Selling the naming rights to that rest area to a peanut producer would be appropriate. Selling the peanuts themselves would not except through a vending machine serviced by a licensed blind vendor. Nonetheless, if consideration is given to allowing the sale of such agricultural products, it must be limited to the sale of the products in their natural form and not in a processed form. Using the Georgia peanut example, if the State of Georgia wants to allow an enterprise to sell Georgia peanuts, they must sell the peanuts in the shell and cannot sell a bag of Lance or Planters peanuts. Likewise, if Idaho wants to sell potatoes, they cannot sell potato chips. Iowa may be allowed to sell corn but not prepackaged bags of popcorn. These types of products are available in the vending machine serviced by the blind entrepreneur. They also should not be allowed to sell drinks to help wash down any products they may buy.
NABM believes there are ways for blind vendors to help a state promote products grown or made in a state. There are already examples of where that is happening. In New York, blind vendors promote New York products through the Taste of New York program. Machines are specially wrapped and only products made in New York are vended. All of this can be done within current law. It is simply a matter of communication and collaboration. NABM believes that states who want to promote products grown or made in their states should reach out to the state licensing agency in their respective states to explore ways the blind entrepreneurs can help accomplish this through vending machines services by blind entrepreneurs.
Are there other commercial activities that should be allowed consistent with Federal law?
NABM would oppose any additional commercial activity that involves the sell of tangible products. We believe that any retail operations should be operated under the priority currently afforded to state licensing agencies under the Randolph-Sheppard Act. As the organization representing blind entrepreneurs across the country, NABM would be happy to engage in conversations with the Department of Transportation to consider possibilities of how this could be accomplished within the confines of current law. NABM has no objection to kiosks whereby tourists can purchase tickets to events or attractions in a state. We do not object to other types of kiosk sales whereby travelers can order products made or grown in a state. We do not object to charging stations for electric automobiles. Current law grants a priority to the SLA’s for lottery machines. NABM would like to explore ways lottery sales could be increased as very few states have taken advantage of this provision. Likewise, an ATM is a vending machine and we believe there could be more potential there as well.
Is there a need for additional Federal guidance on commercial activities in Interstate rest areas and if so, what should the guidance address?
NABM believes that there is already extensive commercial activity occurring illegally at the rest areas. It is being masked as safety breaks. Nonprofits are permitted to come on-site and “give away” products. In exchange, the nonprofit accepts a “donation”. In some cases, there are even suggested donation amounts for the products. They usually offer a large variety of products including soft drinks, coffee, candy, chips, etc. Some even sell prepared foods like hot dogs. All of the prepackaged products are offered for sell in the vending machines. In some cases, the nonprofit sells caps and t-shirts as well. These nonprofits typically want to set up during the busy weekends, which is when blind entrepreneurs who service the vending machines depend on sales to earn their living. They lose money that can never be recouped. NABM believes that such activities should be curtailed. Guidance should be provided that eliminates or severely restricts such practices. NABM does not object to the intent of the safety breaks. In most states, the breaks are as intended. The nonprofit will offer a free cup of coffee and perhaps a fresh donut for the drivers. No donations are accepted. The intent was never to use the rest areas as fund-raisers for nonprofits.
NABM is also sensitive to concerns of the convenience store and fast food industries who fear expanded commercialization will impact their existing franchises at interstate exits as well as locally owned Mom & Pop operations. We also empathize with local government entities who fear the demise of businesses at the exits. Caution is warranted to protect the interests of current business concerns which are primarily small businesses.
In conclusion, NABM believes:
The current definitions of “vending machine” found at 34 C.F.R. 395.1(y) and 76 C.F.R. 19278 are still sufficient today to describe the term;
The livelihood of 363 blind entrepreneurs and the funding stream for state licensing agencies must be protected in any expansion of commercialization;
Micromarkets are not appropriate for any areas that do not have restricted access and we believe the FDA will be issuing guidance to this effect;
There should be no expansion of commercialization at the rest areas except for kiosk sales;
If the sell of agricultural products is permitted, sales must be limited to those products in their natural form and the sell of processed products should be limited to the vending machines serviced by blind entrepreneurs;
Any retail sales of tangible goods should only be allowed under the priority afforded to the state licensing agencies;
Thank you for your consideration.
Nicky Gacos, President
National Association of Blind Merchants