This article is not a substitute for legal advice. See here for the site’s reposting policy.
We’ve been keeping you updated on this blog about the many twists and turns of the historic debt relief for BIPOC farmers, which was originally provided for by Congress in the American Rescue Plan Act (ARPA), but which was subsequently repealed and replaced pursuant to the Inflation Reduction Act (IRA) following lawsuits that halted distribution of relief payments to “socially disadvantaged” farmers, ranchers and forest landowners. Keep reading for the latest updates on direct relief to “distressed” borrowers under the IRA and information about how you can provide comments to the USDA about how the agency should implement Section 22007 of the IRA to provide assistance to producers who have experienced discrimination in USDA farm lending programs.
USDA SEEKING PUBLIC COMMENT ON PROVIDING ASSISTANCE TO AGRICULTURAL PRODUCERS WHO HAVE EXPERIENCED DISCRIMINATION
Under Section 22007 of the IRA, the USDA is to provide $2.2 billion for a program to give "financial assistance, including the cost of any financial assistance, to farmers, ranchers, or forest landowners determined to have experienced discrimination" prior to January 1, 2021, in USDA farm lending programs. The provision allows any farmer, of any race, to receive assistance up to $500,000 "as determined to be appropriate based on any consequences experienced from the discrimination." The agency, however, hasn’t said how “discrimination” is to be defined, when the program will start, how the program will be structured, or how the USDA will select the nongovernmental entities who will administer the program.
Now, the USDA is requesting public comments on each of those points, and it is holding three listening sessions aimed at soliciting public input.
Listening Session One
Date: Thursday, October 20
Time: 12:00 – 3:00PM ET / 11:00AM – 2:00PM CT / 10:00AM – 1:00PM MT / 9:00AM – 12:00PM PT
Listening Session Two
Date: Wednesday, October 26
Time: 4:00 – 7:00PM ET / 3:00 – 6:00PM CT / 2:00 – 5:00PM MT / 1:00 – 4:00PM PT
Listening Session Three Date: Tuesday, November 1
Time: 7:30 – 10:30PM ET / 6:30 – 9:30PM CT / 5:30 – 8:30 PM MT / 4:30 – 7:30PM PT
The USDA is requesting information from the public about how USDA should design and administer the program. For example, it’s asking for suggestions about how USDA should use its programs, funding and authorities to encourage support for former borrowers. It’s also asking how USDA should identify former borrowers who experienced discrimination. Additionally, USDA is asking what criteria USDA should use to select a third party (or parties) to administer the program.
If you don’t attend one of the listening sessions, there are also other ways to submit comments. The 30-day comment period opened Friday, October 14, and closes on November 14, 2022. You can go to www.federalregister.gov/d/2022-22435 for information about other ways to submit comments.
UPDATES ON DIRECT RELIEF TO DISTRESSED FARMERS, RANCHERS AND FOREST LANDOWNERS
Relief Provided So Far and USDA’s Next Steps
Under Section 22006 of the IRA, $3.1 billion is to be provided for relief for all “distressed” borrowers with certain direct or guaranteed loans administered by the Farm Service Agency (FSA). Today, the USDA announced that it has provided nearly $800 million in assistance to just over 13,000 distressed borrowers to help cure delinquencies and resolve uncollectable farm loan debts. It also announced that it has begun a process to provide approximately $66 million in payments from available pandemic assistance funds to provide similar levels of assistance to direct loan borrowers who used disaster set-aside as an option in response to the COVID-19 pandemic. Up to 7,000 borrowers who were struggling to make their scheduled direct loan payment during the pandemic and who used disaster set-aside to delay their payment to the final maturity date of their loan will automatically receive a payment for the remaining outstanding set-aside amount.
In addition, following the automatic payments, about 1,600 farm-loan borrowers with more complex cases and delinquencies of about $330 million will have their respective cases individually reviewed for the chance to receive similar assistance to cure delinquencies, as well as cover their next annual installment if they’re a direct loan borrower.
Another case-by-case process as part of the October 18, 2022, announcement adds an option under existing loan servicing procedures that are used to identify whether an operation has sufficient cashflow to make the next loan installment payment (also known as financially distressed borrowers under existing FSA procedures). USDA will provide new assistance upon borrower requests to cover the next installment that is due for qualifying borrowers facing these cashflow challenges. USDA estimates that up to 14,000 borrowers may qualify for estimated assistance of $175 million. Direct loan borrowers will also be reminded of the process to initiate a review of sufficient cashflow that triggers potential assistance.
Class Action Lawsuit Filed by Farmers of Color
While the repeal of ARPA’s debt cancellation for “socially disadvantaged” famers, ranchers and forest landowners ended the lawsuits that had been filed by white farmers, a lawsuit was recently filed by black and other farmers of color against the U.S. government claiming that that repeal of the debt relief program amounted to a breach of contract by the government. Specifically, the complaint alleges that the letters sent to the plaintiffs by the FSA telling the plaintiffs the amount of debt that they could expect to be covered under the debt relief program constituted a binding contract once the plaintiffs agreed to the respective amounts, and that Congress broke those contracts with the minority producers when lawmakers repealed the debt relief provided to socially disadvantaged producers under ARPA and expanded eligibility under the IRA to a broader group of economically distress borrowers. The plaintiffs in the case claim that they relied on the government’s promise of debt relief per the terms of the letters from FSA, and they borrowed more money for farm operations or bought land and equipment based on the promise of debt relief, and now they risk losing their farms and livelihoods because they are no longer guaranteed to receive the relief. The plaintiffs in the case are requesting that the promise of debt relief be declared by the court to have been an enforceable contract and that the contract was breached by the government. They are seeking compensatory damages. We will follow the case and will keep you updated.