In response to the COVID-19 crisis, NABM has asked the Department of Education to interpret regulations more broadly to benefit blind vendors and state licensing agencies who are struggling financially.  With approximately 1,500 vending facilities operated by blind entrepreneurs shutdown and SLAs are seeing their resources dwindle, now is the time for RSA to step up and help.  Thus far, our federal partners have been slow to act.  NABM had asked RSA to allow states t use federal dollars to pay a fair minimum return to blind vendors who are out of work.  We also requested that states be allowed to use federal dollars to replenish facility inventories when they reopen in a few months.  So far, the answer to both is no.  NABM recently wrote to the Secretary of Education and Acting Assistant Secretary to further make our case.  The letter is below.  The Assistant Secretary has responded to say they are exploring options.  

7450 Chapman Highway, #319

Knoxville, TN  37920

April 5, 2020

The Honorable Betsy DeVos

and

The Honorable Mark K. Schultz

U.S. Department of Education

Washington, D.C.  20202

Dear Secretary DeVos and Assistant Secretary Schultz:

            I am following up on my March 16 letter and previous communications with Mr. Schultz.  We were in the process of setting up a meeting with the Assistant Secretary to discuss a number of Randolph-Sheppard issues but that was before the COVID-19 crisis.  Understandably, everyone’s focus is on that fight and that meeting will certainly wait.  However, we do want to follow up on some points in my March 16 letter to and bring to your attention some new COBID-19 related issues.  

            This weekend we learned that the Department of Transportation has granted a waiver to the statutory prohibition against there being any retail sales at the interstate rest areas other than vending machines operated by the state licensing agencies.  States have been given the flexibility to allow food trucks to primarily serve truckers.  The practical impact of this decision is that many blind vendors who had already seen their sales plummet will be forced to shutdown as further revenue declines will make it impractical for them to remain open.  Before this news, we estimated that 75% of the Randolph-Sheppard vending facilities in the country were closed.  We anticipate that number will increase to more than 90% as the 400 blind vendors at the rest areas start to close their businesses.  The problem is further compounded by the fact many state agencies use third parties to service the rest areas and utilize those funds to draw down tens of millions of 110 dollars, a large portion of which is used to serve VR clients. 

            This action by DOT is significant for another reason.  In this state of a national emergency, DOT had the authority to waive statutory requirements.  However, RSA has been slow to grant waivers of any kind whether they are regulatory or statutory.  At a time when state agencies and their constituents are struggling, bold action by the federal government is required.   You are in position to take such action and provide relief without the need for Congress to appropriate a single additional dollar.  RSA could assist greatly by agreeing to interpret regulations and statutes in a way that is favorable to the states and in this case to the Randolph-Sheppard vendors.  The courts have repeatedly granted great deference to federal entities in the interpretation of their regulations.  We urge you to use that deference and whenever appropriate look at your regulations through another lens. 

            A perfect example of where flexibility can be given is the interpretation that federal dollars can only be used when a blind vendors assumes a new location or the nature of the business changes.  We have vending facilities that will be closed for months.  They will effectively be opening up new.  The nature of the businesses has changed forever.  By simply allowing states to use federal dollars to restock these vending facilities when they reopen would be a huge benefit to the state agencies and a big relief to the blind vendors who in many cases are responsible for the stock and will not be able to reopen and will be forced out of the program.  How does that fulfill the purpose of the Randolph-Sheppard Act?  We do not believe there is a statutory or regulatory prohibition to say federal funds can be used to provide inventory when a blind vendor accepts a new assignment, the nature of the business changes, or the business reopens after having been closed for an extended period of time due to no fault of the SLA or blind vendor.    Please give this serious consideration and act quickly. 

            In our previous letter, we asked for a waiver of the regulatory prohibition of using federal VR dollars to pay a fair minimum return.  Here again, we do not believe that the regulations expressly prohibit using 110 dollars for fair minimum return.  The regulations are silent.  Yes, 34 C.F.R.395.1(j) precludes a state from using federal dollars to pay for “on-going operation of a vending facility.”  That is generally refers to paying on-going business expenses such as payroll, rent, utilities, accounting, etc.   FMR is not an on-going business expense.  In our opinion, RSA has the authority to interpret that, at least a temporary basis, in such a way as to allow it. 

            Thank you for your consideration.  If you’d like to discuss this further, please feel free to contact me.             

Sincerely,

Nicky Gacos, President

President@merchants-nfb.org

(908) 464-5359The National Federation of the Blind knows that blindness is not the characteristic that defines you or your future. Every day we raise the expectations of blind people, because low expectations