The American Rescue Plan Act of 2021 (ARPA) provides nearly $2 trillion to expedite the United States’ recovery from the impacts of the COVID-19 pandemic. APR § 1006(a)(3) provided funding to the U.S. Department of Agriculture (USDA) to establish an Equity Commission to address historical discrimination and equity issues within USDA and its programs. Over six months later, on September 27, 2021, USDA finally published a Notice of Intent to establish an Equity Commission.
On February 10, 2022, USDA announced the membership of its 15-member Advisory Committee and Subcommittee on Agriculture. The Equity Commission is intended to advise USDA Secretary Tom Vilsack on identifying USDA programs, policies, systems, structures, and practices that contribute to barriers to inclusion or access, systemic discrimination, or exacerbate or perpetuate racial, economic, health, and social disparities. The Equity Commission is required to deliver an interim report and provide actionable recommendations to Secretary Vilsack no later than 12 months after inception, with a final report due one year later.
Congressional funding for the Equity Commission appears to have largely been prompted by continuing discrimination against African American farmers and ranchers by USDA. There is no doubt that addressing these historic and continuing wrongs against minority farmers is important. However, nearly 80% of USDA’s budget goes to nutrition programs administered by the Food and Nutrition Service (FNS), and the overwhelming majority is devoted to the Supplemental Nutrition Assistance Program (SNAP). Formerly known as the Food Stamp program, SNAP provides benefits to more than 40 million Americans via benefits loaded monthly on a debit-type EBT card that can be used at over 250,000 authorized retailers to purchase eligible food products.
Most SNAP retailers authorized by FNS to participate in the program are owned by minorities, particularly immigrants from the Middle East, South Asia, and East Asia. These retailers operate groceries and convenience stores in socioeconomically-impaired food deserts across the county and provide critical services to SNAP beneficiaries in areas without supermarkets and superstores. For decades, FNS has operated its SNAP retailer administrative system in an inequitable manner that has clear discriminatory impacts on minority and immigrant retailers, many of whom operate stores in rural areas. For example, FNS refuses to provide all of the records on which it makes SNAP administrative decisions to retailers or their counsel.
I have practiced law for more than 25 years, and am not aware of any federal, state, or local administrative process (other than those involving national security) in which a federal agency can permanently take away a license or permit based on information that is withheld from with the license-holder.
One current example of FNS’s inequitable actions involves a grocery store located in California owned by a Muslim immigrant from the Middle East who is accused of improperly accepting SNAP benefits without a license. FNS’s letter did not identify the transactions in question or provide the amount of the potential fine. After I asked for that information from the FNS program specialist who issued the charge letter, I was told I needed to file a Freedom of Information Act Request (FOIA). Unfortunately, filing a FOIA request is ineffective because FNS issued a final rule in October 2020 that prevents SNAP retailer administrative cases from being put on hold until the agency provides requested records. The purported reason for this regulation was the subject of testimony by former USDA Secretary Sonny Perdue during a 2019 Senate Agriculture Committee hearing; Perdue testified that SNAP retailers and a “cottage industry” of attorneys were using FOIA requests to delay administrative proceedings. However, neither Secretary Perdue nor FNS recognize that the real reason for these delays was the agency’s abysmal record in responding to FOIA requests. According to USDA’s FY21 FOIA Report, it took FNS an average of 221 days to process simple FOIA requests, even though the law requires federal agencies to respond to FOIA requests within 20 working days. The FY21 FOIA report also showed that FNS has, by far, the worst record of processing and responding to FOIA requests out of all USDA agencies.
It is unclear whether the Equity Commission will take steps to address the endemic discrimination that exists against minority SNAP retailers at FNS. For years, I have been active in encouraging the agency to take action to address these historic wrongs. These efforts have fallen on deaf ears. Last September, shortly after FNS brought nearly 100 trafficking cases against SNAP retailers in Memphis; all were immigrants or descendants of Muslim immigrants from the Middle East. After years of inaction by FNS and promises by Secretary Vilsack during his Senate confirmation hearing, I had no choice but to file a complaint with FNS’s Civil Rights Division (CRD). Unfortunately, despite the passage of nearly six months since I filed the CRD complaint and notwithstanding Democratic leadership at USDA and FNS, no changes have been made.
On February 28, 2022, nearly a year after ARP was signed into law by President Biden, the Equity Commission finally held its inaugural meeting. The discussion was heavily focused, not surprisingly, on discrimination against African-American farmers and ranchers. There was only one passing reference to the SNAP program. USDA’s Equity Commission should not limit its focus to farmers and ranchers and must include other USDA agencies, including FNS, that are adversely impacted by discrimination. Wholesale changes, including reform of the entire SNAP retailer administrative program, are desperately needed. If that happens, the prayers of SNAP retailers still being subjected to discriminatory impacts at a federal department often referred to as “the Last Plantation” may finally be heard.