15W089R.htm

DIRECTOR REVIEW DETERMINATION

In the Matters of

)

XXXXX

XXXXX XXXXX

Appellants

And

RISK MANAGEMENT AGENCY

) Case No. 2015W000089

) Case No. 2015W000090

) Case No. 2015W000091

) Case No. 2015W000092

) Case No. 2015W000093

) Case No. 2015W000094

) Case No. 2015W000095

) Case No. 2015W000096

) Case No. 2015W000097

) Case No. 2015W000098

) Case No. 2015W000099

) Case No. 2015W000100

) Case No. 2015W000101

) Case No. 2015W000102

) Case No. 2015W000103

) Case No. 2015W000104

) Case No. 2015W000105

) Case No. 2015W000106

) Case No. 2015W000107

) Case No. 2015W000108

) Case No. 2015W000109

) Case No. 2015W000112

) Case No. 2015W000113

) Case No. 2015W000114

) Case No. 2015W000115

) Case No. 2015W000116

) Case No. 2015W000118

) Case No. 2015W000119

) Case No. 2015W000120

) Case No. 2015W000121

) Case No. 2015W000122

) Case No. 2015W000123

) Case No. 2015W000126

) Case No. 2015W000127

) Case No. 2015W000128

) Case No. 2015W000129

) Case No. 2015W000134

) Case No. 2015W000135

) Case No. 2015W000136

) Case No. 2015W000137

)

Agency

)

Introduction

On October 31, 2014, the Administrator of the Risk Management Agency (RMA) issued a letter to all approved insurance providers (AIPs) providing guidance on how they should implement an important new crop insurance provision enacted by Congress as part of the Agricultural Act of 2014 (the 2014 Farm Bill). The new provision is known as the Actual Production History Yield Exclusion (the APH Yield Exclusion), and it provides a benefit to farmers who own crop insurance policies by allowing them to elect to exclude low crop yields from their production history if certain criteria are met.

In these consolidated appeals, forty different Appellants contend that RMA’s guidance letter, hereafter referred to as the RMA Letter, is an adverse decision appealable to the National Appeals Division (NAD). A NAD Administrative Judge[1] conducted a hearing and, on March 13, 2015, issued an Appeal Determination concluding that the RMA Letter is not an adverse decision because it denies no program benefits and also because it involves a matter of general applicability. Accordingly, the Administrative Judge concluded that NAD does not have jurisdiction to consider the consolidated appeals. Appellants then filed this request for Director review of the Appeal Determination.

Based on my review of the entire record, I reverse the Appeal Determination’s holding that NAD lacks jurisdiction to consider the consolidated appeals; however, I uphold RMA’s decision, as reflected in the RMA Letter, because I find that it is not erroneous or inconsistent with applicable laws and regulations.

Issues to be Determined

These consolidated appeals raise two separate but equally significant issues: First, does NAD have jurisdiction to consider Appellants’ consolidated appeals; and second, if NAD does have jurisdiction, have Appellants proven by a preponderance of evidence that the RMA Letter is erroneous? See 7 U.S.C. § 6997(c)(4). To resolve the jurisdictional issue, I must determine whether: (1) Appellants are participants within the meaning of 7 C.F.R. § 11.1; and (2) the RMA Letter is appealable to NAD. To resolve the latter issue, I must determine whether the RMA Letter is an adverse decision within the meaning of 7 U.S.C. § 6991(1) and subject to appeal pursuant to 7 U.S.C. § 6992(d) and 7 C.F.R. § 11.6(a)(2). If I find that the RMA Letter is subject to appeal, I must then determine on the merits whether the RMA Letter was issued in accordance with the laws and regulations of the agency, and with the generally applicable interpretations of such laws and regulations. 7 C.F.R. § 11.10(b).

Background

The purpose of the Federal Crop Insurance Act (the Insurance Act) is to “promote the national welfare by improving the economic stability of agriculture through a sound system of crop insurance and providing the means for the research and experience helpful in devising and establishing such insurance.” 7 U.S.C. § 1502(a). To further these purposes, Congress established the Federal Crop Insurance Corporation (FCIC) as a government-owned corporate body and agency within the United States Department of Agriculture (USDA). See 7 U.S.C. § 1503. The FCIC, or AIPs that enter into Standard Reinsurance Agreements with the FCIC, provide crop insurance to producers. See 7 C.F.R. Part 400, Subpart T. RMA administers and oversees the delivery of all Federal crop insurance programs for FCIC. See 7 U.S.C. § 6933.

Public Law 113-79 (Agricultural Act of 2014), known as the 2014 Farm Bill, was signed into law on February 7, 2014. Section 11009 amends Section 508(g) of the Insurance Act and authorizes an adjustment in actual production history to establish insurable yields, hereafter referred to as the APH Yield Exclusion. Codified at 7 U.S.C. § 1508(g)(4)(C), the APH Yield Exclusion provides, in part, that the producer may elect to exclude any recorded or appraised yield for any crop year in which the per planted acre yield of the agricultural commodity in the county of the producer was at least 50 percent below the simple average of the per planted acre yield of the agricultural commodity in the county during the previous 10 consecutive crop years. 7 U.S.C. § 1508(g)(4)(C)(i). The APH Yield Exclusion provides a potential benefit to farmers who have crop insurance policies since excluding lower crop yields can increase a farmer’s APH, resulting in a higher insurance guarantee and increased insurance payments. See Appeal Determination at 2.[2]

The calendar date by which RMA could make changes to the Common Crop Insurance Policy Basic Provisions (Basic Provisions) for 2015 winter wheat crop policies was June 30, 2014. By Interim Rule published in the Federal Register on July 1, 2014, effective June 30, 2014, FCIC amended the Basic Provisions at 7 C.F.R. § 457.8 to specify when insureds might elect to exclude crop yields pursuant to the APH Yield Exclusion. It replaced the previously reserved Section 5 with a new section entitled “Exclusion of Yields,” which states:

If provided in the actuarial documents, you may elect to exclude any actual yield for any crop year when FCIC determines for a county, or its contiguous counties, the per planted acre yield was at least 50 percent below the simple average of the per acre planted yield for the crop in the county for the previous 10 consecutive crop years.

On July 10, 2014, the House Agriculture Subcommittee on General Farm Commodities and Risk Management of the Committee on Agriculture (hereafter referred to as the Subcommittee), held a hearing to discuss implementation of the 2014 Farm Bill. USDA informed the members of the Subcommittee that the APH Yield Exclusion would be available for crops planted in the fall of 2015, which meant the 2016 crop year. The chairman of the Subcommittee told USDA: “All we ask on APH [referring to the APH Yield Exclusion] is that some effort be made to partially implement the provision in time for [the] 2015 [crop year] where relief is needed most.” Agency Record at 14 (containing Prepared Statement of Subcommittee XXXXX).

Appellants are producers of winter wheat in XXXXX, XXXXX, and XXXXX. The closing date to purchase crop insurance for 2015 winter wheat was September 30, 2014. 7 C.F.R. § 457.101, Small Grains Crop Provisions, Section 5. On or about that date, Appellants each gave their respective crop insurance agents a letter stating: “I elect to exclude the recorded or appraised yield from my Actual Production History for wheat in those crop years that are eligible for an exclusion pursuant to the Federal Crop Insurance Act, 7 U.S.C. § 1508(g)(5)(C) [sic]. Please notify my approved insurance provider of this election.” Appellants’ Exhibits A.1-A.40. When Appellants submitted election letters to their crop insurance agents, RMA’s actuarial documents did not yet contain coverage levels, insurance guarantees, or premium rates related to electing the APH Yield Exclusion for any 2015 crops. See Agency Record at 20, 170, and 222-256.

Appellants each obtained crop insurance for 2015 winter wheat. FCIC reinsured all of Appellants’ crop insurance policies under a Standard Reinsurance Agreement with their respective AIPs. Appellants’ Exhibits A.1-A.40; Appellants’ Exhibit C at 10; and Appellants’ Requests for Appeal at 1. On October 1, 2014, two AIPs, XXXXX XXXXX and XXXXX, contacted RMA about letters they had received from their crop insurance customers, including a letter from one Appellant, electing to exclude their 2015 winter wheat yields pursuant to the APH Yield Exclusion provision of the 2014 Farm Bill. XXXXX XXXXX told RMA that it anticipated such requests would become an industry-wide issue, and thus they asked RMA for guidance in how they should respond to the requests. See Agency Record at 260‑274.

On October 1, 2014, RMA began drafting guidance for the AIPs concerning the availability of the APH Yield Exclusion. Before issuing the guidance in the form of the RMA Letter, RMA sent several drafts to the President of National Crop Insurance Services, an organization representing the interests of all AIPs, for his comments. Id. at 263 and 275-334.

On October 21, 2014, the Secretary of Agriculture (Secretary) announced that because of progress made implementing several 2014 Farm Bill programs, 11 crops would be eligible for the APH Yield Exclusion in the spring of 2015, which was earlier than expected. The crops eligible for the APH Yield Exclusion all had crop insurance contract change dates on or after November 30, 2014. Id. at 170 and 225.

On October 31, 2014, RMA’s Administrator, XXXXX, issued the RMA Letter to all AIPs entitled, “Guidance Regarding Availability of Actual Production History – Yield Exclusion for 2015 Crop Year.” The RMA Letter advised the AIPs that they may use the following language in responding to requests for APH Yield Exclusion for crops for which RMA had not yet authorized such exclusion during the 2015 crop year:

As an approved insurance provider, under the terms of the Standard Reinsurance Agreement with the Federal Crop Insurance Corporation (FCIC) and the preamble to your policy, the Common Crop Insurance Policy Basic Provisions (Basic Provisions), we are required to follow FCIC approved policy provisions, procedures, and actuarial documents. Section 5 of the Basic Provisions states:

5. Exclusion of Yields.

Therefore, until RMA’s actuarial documents reflect that such an election is available, we are unable to accommodate your request.

Id. at 335-336.

On November 10, 2014, ProAg, an AIP, created a notice regarding the availability of the APH Yield Exclusion for the 2015 crop year using the RMA Letter as authority. The notice stated: “In regards to any questions surrounding the availability of the APH Yield Exclusion for any crops prior to the 11/30 Contract Change Date, the following memo was released by RMA for company use . . . .” The notice then replicated the contents of the RMA Letter. Appellants’ Exhibits A.2, A.7, A.8, A.10, A.12, A.18-A.20, A.24, and A.37-A.40.

Another AIP, XXXXX, included an unaddressed letter with its insureds’ 2015 fall confirmations of coverage. The letter stated:

If you elected on your fall application any of three options listed below the options will not be authorized as they were not in RMA’s actuarial documents and were not offered for 2015 fall crops.

1. Separate enterprise unit for irrigated and non irrigated practices.

2. Separate coverage levels by irrigated and no irrigated practices.

3. Actual production history – yield exclusion.

Appellants’ Exhibit A.3. XXXXX also inserted language from the RMA Letter in its fall confirmation letters to insureds. See Appellants’ Exhibits A.6, A.30, and A.36. A third AIP, XXXXX, issued individually-addressed letters to certain of the Appellants in response to their APH Yield Exclusion election requests. The XXXXX letters enclosed a copy of the RMA Letter. See Appellants’ Exhibits A.4, A.5, A.23, and A.27.

Appellants filed appeals of the RMA Letter with NAD, and NAD consolidated all of the appeals since they presented identical issues of fact and law.[3] At Appellants’ request, a NAD Administrative Judge conducted a hearing by telephone on January 12, 2015. On March 13, 2015, the Administrative Judge issued an Appeal Determination concluding that the RMA Letter was not an adverse decision because it did not deny benefits to any participants and involved a matter of general applicability. Accordingly, the Administrative Judge dismissed all of the consolidated appeals. Appellants then filed this request for Director review to which RMA filed a response.

Legal Authorities and Standard of Review

The key legal authorities at issue in this appeal are those that define NAD’s jurisdiction and those that govern statutory interpretation. NAD’s jurisdiction was established by Congress when it created NAD pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Pub. L. 103-354 (the Act), 7 U.S.C. § 6911 et seq. The key provision defining NAD’s jurisdiction is set forth in Section 276 of the Act, which provides that “a participant shall have the right to appeal an adverse decision” to NAD. 7 U.S.C. § 6996 (emphasis added). Congress further provided that several designated agencies who issue adverse decisions to participants would be subject to NAD’s jurisdiction. See 7 U.S.C. 6991 (definition of “agency”). Finally, Congress clarified that “the Director [of NAD] shall determine whether the decision is adverse to the individual participant and thus appealable or is a matter of general applicability and thus not subject to appeal.” 7 U.S.C. § 6992(e) (emphasis added). Taking all of these provisions together, it is clear that for NAD to have jurisdiction over an appeal, the appellant must be a participant who has received an adverse decision from one of the agencies designated under the Act.

Congress delegated to the Secretary the authority to define the term “participant,” 7 U.S.C. § 6991(9), and the Secretary has determined that a participant is “any individual or entity who has applied for, or whose right to participate in or receive, a payment, loan, loan guarantee, or other benefit in accordance with any program of an agency to which the NAD regulations apply is affected by a decision of such agency.” 7 C.F.R. § 11.1.

Congress defined the term “adverse decision” as an “administrative decision made by an officer, employee, or committee of an agency that is adverse to the participant.” 7 U.S.C. § 6991(1). The term includes decisions denying participation in, or benefits under, any program of an agency and the making or the amount of payment or other program benefits to a participant in any program of any agency. 7 C.F.R. § 11.3(a)(1) and (3). An adverse decision can also include the failure of an agency to issue a decision or otherwise act on the request or right of the participant within timeframes specified by agency program regulations or within a reasonable time if timeframes are not specified in such statutes or regulations. See 7 C.F.R. § 11.1.

In response to a request for Director review, I conduct a review of the Administrative Judge’s determination using the entire case record in order to determine if it is supported by substantial evidence. 7 C.F.R. § 11.9(d)(1). Substantial evidence has been described by the Supreme Court as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Based on such review, I issue a final determination notice that upholds, reverses, or modifies the Administrative Judge’s decision. 7 C.F.R. § 11.9(d)(1). In making a determination on the appeal, I endeavor to ensure that the agency’s adverse decision is consistent with the laws and regulations of the agency, and with the generally applicable interpretations of such laws and regulations. 7 C.F.R. § 11.10(b).

Analysis

Appellants contend that RMA acted improperly when it issued the RMA Letter because the letter had the effect of denying their valid requests to invoke the APH Yield Exclusion for their 2015 winter wheat crops. However, before I may consider the merits of Appellants’ argument, I must determine as a threshold matter whether NAD has jurisdiction over the consolidated appeals.

Does NAD Have Jurisdiction to Consider the Appeals?

As noted above, in order for NAD to have jurisdiction over these appeals, Appellants must be participants who have received an adverse decision from one of the agencies designated under the Act. There is no dispute in this case that RMA is one of the agencies designated under the Act, see 7 U.S.C. § 6991(2); thus, my remaining analysis on whether NAD has jurisdiction focuses on whether Appellants qualify as “participants” and whether the RMA Letter that Appellants dispute qualifies as an “adverse decision” within the meaning of the Act.

Turning first to the issue of whether Appellants are participants, NAD’s regulations broadly define the term “participant” to include “any individual who has applied for, or whose right to participate in or receive, a payment, loan, loan guarantee, or other benefit in accordance with any program of an agency to which the NAD regulations apply is affected by a decision of such agency.” 7 C.F.R. § 11.1 (definition of “participant”) (emphasis added). Here, the record makes clear that Appellants are farmers and/or farming operations who are active participants in the RMA crop insurance program.[4] Moreover, Appellants have attempted to obtain a program benefit by requesting their AIPs to apply the APH Yield Exclusion to their winter wheat crops for crop year 2015. Id. Based on these facts, it is clear that Appellants qualify as “participants” within the meaning of NAD’s regulations, and RMA does not challenge that conclusion.[5]

The second issue—whether the RMA Letter constitutes an “adverse decision” within the meaning of the Act—is far more complicated. When determining whether an agency’s action constitutes an adverse decision, a key consideration is whether the decision takes any action or makes a decision that specifically prevents an appellant from participating in a program or from receiving a program benefit. See NAD Case Nos. 2010W000439, 2010W000393, and 2010W000394 (Dir. Rev., Mar. 11, 2011) (finding that RMA’s decision to establish a baseline water allotment was adverse to appellants because the effect of the decision was to reduce the indemnity appellants would otherwise receive).

In this case, the Administrative Judge determined that the RMA Letter is not an adverse decision appealable to NAD because it does not preclude Appellants from receiving an available Federal Crop Insurance Program (FCIP) program benefit. The Administrative Judge explained that, at the time Appellants submitted letters to their crop insurance agents electing the APH Yield Exclusion for their 2015 winter wheat crops, the APH Yield Exclusion was not available for any 2015 crops. Hence, she concluded that the RMA Letter did not alter any existing right or deprive Appellants of a program benefit. See Appeal Determination at 7-8.

Appellants argue that the APH Yield Exclusion is a benefit of the FCIP program to which they are statutorily entitled. See Appellants’ Request for Director Review at 4-5. In response, RMA contends that the Administrative Judge correctly decided that the APH Yield Exclusion is a benefit to which Appellants were not entitled during the 2015 crop year because RMA had not yet implemented it. See Agency Opposition to Request for Director’s Review at 11.

I agree with Appellants that the RMA Letter had the effect of denying them a program benefit. Although it may be true that RMA had not yet implemented the APH Yield Exclusion at the time that Appellants attempted to elect to exclude their 2015 winter wheat crop yields, Appellants seize upon this very point to argue that RMA has acted in violation of the law. In other words, it is precisely RMA’s failure to implement the APH Yield Exclusion for 2015 winter wheat that Appellants challenge as an adverse action. See Appellants’ Request for Director Review at 8-9. See also Fairview Deaconess Hosp. v. Heckler, 749 F.2d 1256, 1257 (8th Cir. 1984) (rejecting Health and Human Services’ challenge to federal court jurisdiction over a payment dispute in the Medicare program and stating, “to hold [in the government’s favor] would be to beg the question as to the merits of the appellants’ position”). Moreover, NAD’s regulations explicitly recognize an agency’s failure to act as a form of adverse decision subject to NAD jurisdiction. See 7 C.F.R. § 11.1 (stating that the term “adverse decision” includes “the failure of an agency to issue a decision or otherwise act on the request or right of the participant”).

RMA’s own regulations, while not dispositive of NAD’s jurisdiction, likewise make clear that an adverse decision encompasses a denial of benefits “to which the participant believes he or she was entitled.” 7 C.F.R. § 400.90 (definition of “adverse decision”). See also NAD Case No. 2013W000438 (Dir. Rev., Dec. 11, 2013) (citing RMA’s regulations and finding that an RMA memorandum directing AIPs to correct certain crop insurance policies was an adverse decision). Here, it is clear that Appellants each believed they were entitled to exclude their 2015 winter wheat crop yields; thus, under RMA’s own definitions, the RMA decision would be considered adverse.[6]

In reaching this conclusion, I note that the definition of the term “adverse decision” as set forth in both the Act and NAD’s implementing regulations refers to a decision of an “agency” and not the actions or decisions of a private party, such as an AIP. See 7 U.S.C. § 6991(1); 7 C.F.R. § 11.1 (definition of “adverse decision”). However, because of the unique relationship between RMA and the AIP community that RMA advises and directs, NAD has found on many occasions that the actions of RMA and AIPs frequently converge in a manner that essentially renders RMA responsible for the AIPs’ ultimate implementation of RMA’s decisions. See, e.g., NAD Case Nos. 2010W000439, 2010W000393, and 2010W000394 (Dir. Rev., Mar. 11, 2011) (finding that an RMA Information Memo was an adverse decision because it “directed the AIPs” to use the baseline water allotment to calculate eligible prevented planting acreage); see also NAD Case No. 2013W000438 (Dir. Rev., Dec. 11, 2013) (finding that an RMA memorandum issued to AIPs was adverse to specific participants even though it was the AIPs who implemented the changes to appellants’ crop insurance policies).

In this case, although RMA did not explicitly mandate the AIPs to deny Appellants’ requests to exclude their yields of winter wheat, there can be no doubt that the effect of RMA’s decision was adverse to Appellants because it provided the authority for the AIPs to take the further action of notifying many of the Appellants that they could not accommodate the Appellants’ requests. The last sentence of the RMA Letter made it clear that RMA intended this result. It suggested that the AIPs tell their customers: “Therefore, until RMA’s actuarial documents reflect that such an election is available, we are unable to accommodate your request.” Agency Record at 336. Moreover, the record makes it clear that once the AIPs received this guidance, they perceived it as authority to deny Appellants’ requests and they acted in accordance with the guidance, in many cases reciting the RMA Letter verbatim as their basis for denying participants the benefit of the APH Yield Exclusion.

Under these circumstances, I conclude that the RMA Letter effectively functioned as a directive to the AIPs, in part because the AIPs viewed it that way. Thus, consistent with our precedent, I find the RMA Letter to be an agency action that was adverse to Appellants. See NAD Case No 2012E000136 (Dir. Rev., Aug. 7, 2012) (stating that “AIP took the initial findings as a clear directive by RMA” to void an appellant’s crop insurance policies); NAD Case Nos. 2010W000439, 2010W000393, and 2010W000394 (Dir. Rev., Mar. 11, 2011); NAD Case No. 2013W000438 (Dir. Rev., Dec. 11, 2013).[7]

Although I find that the effect of the RMA Letter was to deny a program benefit, that finding does not end the inquiry as to whether it qualifies as an adverse decision subject to NAD’s jurisdiction. RMA argues that the policy decisions made by the Secretary and implemented by RMA regarding the implementation of the APH Yield Exclusion are “matters of general applicability” outside the jurisdiction of NAD. The Administrative Judge accepted RMA’s argument, reasoning that the “policy decisions that the Secretary made regarding when and how USDA would implement provisions of the 2014 Farm Bill, including the APH Yield Exclusion, applied to all FCIP program participants.” Appeal Determination at 12. The Administrative Judge concluded: “The RMA [Letter] is therefore not within NAD’s jurisdiction because its subject matter was generally applicable to FCIP program participants.” Id.

I note that the issue of NAD’s jurisdiction to review matters of general applicability has been commonly misunderstood and often misapplied by several USDA agencies subject to NAD’s jurisdiction. It is true that for an agency action to constitute an adverse decision within the meaning of the Act, it must be adverse “to the individual participant” rather than “a matter of general applicability.” 7 U.S.C. § 6992(d); see also 7 C.F.R. 11.6(a)(2). In practical terms, what this means is that NAD ordinarily will not have the authority to review a direct, facial challenge to an interpretation of a rule or a policy issued by an agency when it involves a matter of general applicability; instead, a participant must await the application of the interpretation or policy to their request for a program benefit. It is only at that point that an appeal to NAD becomes ripe for review. In this regard, NAD’s appeal process works in a manner akin to the ripeness requirement articulated by the Supreme Court for challenging land management decisions undertaken by the United States Forest Service pursuant to the National Forest Management Act of 1976. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) (finding the XXXXX XXXXX facial challenge to a forest plan unripe for judicial review and noting that the Sierra Club “will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain”).

Thus, neither the Act nor NAD’s regulations prohibit NAD from reviewing a matter of general applicability under any circumstance or at any time. If that were the case, an agency could shield an adverse decision in nearly every instance from NAD’s review simply by stating that the decision is based on a policy, general guidance, or interpretation of a rule or statutory provision. In fact, agencies subject to NAD jurisdiction frequently assert this position when they issue adverse decisions to participants, and NAD routinely overrules those decisions in what it calls “appealability determinations.”[8]

Moreover, the notion that NAD can never review matters of general applicability does not comport with the legislative history of the Act, in which Congress made clear that it expects NAD to scrutinize agency guidance pronouncements and interpretations rather than accept them as unreviewable. For example, the Report of the Senate’s Committee on Agriculture, Nutrition, and Forestry stated:

The Committee is disturbed that decisions under the current appeals process are often based on interpretive or procedural rules and polices (such as Administrative Notices, “unnumbered letters” and handbooks) which are not subject to public review and comment requirements of the Administrative Procedure Act. Such informal rules and policies do not carry the force of law, as courts have increasingly recognized. This provision ensures that NAD bases its determinations on the statute and regulations, not on interpretive or procedural rules and policies.

S. Rep. No. 103-241, at 15 (1994).[9]

Thus, I disagree that NAD lacks jurisdiction over these appeals simply because they involve a matter of general applicability. NAD has jurisdiction to review an agency policy, guidance, or interpretation once the agency adversely applies the policy, guidance, or interpretation to a specific request of a participant. Neither the Act nor NAD’s implementing regulations constrain NAD from reviewing an agency policy, guidance, or interpretation once it is adversely applied to an individual participant because at that point the policy, guidance, or interpretation becomes ripe for NAD review.

The record here reveals that the RMA decision embodied in the RMA Letter is now ripe for review because many of the AIPs have taken particularized and concrete action to implement the guidance they received from RMA. Through the notices they issued to their crop insurance customers,[10] the AIPs applied the guidance they received from RMA to crop insurance policies purchased by specific program participants, including Appellants. Since the RMA decision has been applied to individual participants, those participants may challenge the underlying basis for the denial of their requests for a program benefit.

Was the RMA Letter Issued in Accordance with Applicable Laws and Regulations?

Because I have determined that the RMA Letter is subject to appeal, I now consider the merits of Appellants’ appeals, which requires me to determine whether the RMA Letter was issued in accordance with the laws and regulations of the agency, and with the generally applicable interpretations of such laws and regulations. 7 C.F.R. § 11.10(b).

The Administrative Judge did not issue a formal determination on the merits of Appellants’ appeals, but instead dismissed the appeals on jurisdictional grounds. The parties, however, fully briefed their arguments on the merits in both the lower proceeding before the Administrative Judge and in this proceeding on Director review. Moreover, the parties thoroughly argued their positions on the merits in the hearing before the Administrative Judge, which is part of the record. Having reviewed the record in its entirety, I find it adequate to allow me to make a final determination on the merits of these appeals. Therefore, it is not necessary to remand these appeals to the Administrative Judge for further proceedings or a new hearing. See 7 C.F.R. § 11.9(d)(1).[11]

The key issue on the merits is whether RMA acted in accordance with the law when it exercised discretion to determine the appropriate time to implement the APH Yield Exclusion. Appellants argue that RMA did not act in accordance with the law because the law requires immediate application of the APH Yield Exclusion. To resolve this issue, I must determine whether the pertinent statutes enacted by Congress precisely answer this issue. If they do not, and the pertinent statutes are either silent or ambiguous on the issue, then I must determine whether the agency’s interpretation of the pertinent statutory language is based on a permissible construction of the statutes. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

The parties agree that the pertinent statutory language at issue in this dispute is contained in two different sub-paragraphs of Section 508(g) of the Federal Crop Insurance Act, 7 U.S.C. § 1508(g) (Insurance Act).[12] The first and perhaps most important provision is the one that contains the APH Yield Exclusion, which is codified at 7 U.S.C. § 1508(g) (4)(C). That provision, entitled “Election to exclude certain history,” states in pertinent part:

In general . . . with respect to 1 or more of the crop years used to establish the actual production history of an agricultural commodity of the producer, the producer may elect to exclude any recorded or appraised yield for any crop year in which the per planted acre yield of the agricultural commodity in the county of the producer was at least 50 percent below the simple average of the per planted acre yield of the agricultural commodity in the county during the previous 10 consecutive crop years.

The other provision, which is also part of Section 1508(g), is codified at 7 U.S.C. § 1508(g)(4)(A). That provision, entitled “Application,” states:

This paragraph shall apply whenever the [FCIC] uses the actual production records of the producer to establish the producer’s actual production history for an agricultural commodity for any of the 2001 and subsequent crop years.

Appellants argue that the plain language of these provisions, particularly the “Application” provision codified at 7 U.S.C. § 1508(g)(4)(A), makes the APH Yield Exclusion self-executing and immediately available to producers with crop insurance policies. They contend that neither 7 U.S.C. § 1508(g) nor any provision of the 2014 Farm Bill provides for any delay in the implementation of the APH Yield Exclusion or grants discretion to RMA to determine the effective date of the APH Yield Exclusion. Appellants’ Request for Director Review at 2-3 and 7-13.

Appellants also contend that, while other sections of the 2014 Farm Bill contained separate applicability dates, there was no need to specify one for the APH Yield Exclusion because the paragraph in which it is codified, Section 508(g)(4) of the Insurance Act, contains the applicability provision quoted above and codified at 7 U.S.C. § 1508(g)(4)(A). Appellants argue that the applicability provision of Section 508(g)(4)(A) of the Insurance Act, which predates the 2014 Farm Bill, renders the APH Yield Exclusion immediately effective. Id. at 10-11.

In response, RMA counters that there is nothing in the actual text of the APH Yield Exclusion provision that mandates implementation for the 2015 crop year or states that it is self-executing. RMA argues that “practical realities” require RMA to undertake a series of administrative actions before the APH Yield Exclusion can be implemented. Because RMA must first calculate county yields to determine which crops, counties, and crop years qualify on an irrigated and non-irrigated basis, among other things, RMA argues that Congress could not have intended for the APH Yield Exclusion to be self-executing. Agency Opposition to Request for Director’s Review at 6-7.

The Administrative Judge carefully considered the parties’ arguments but ultimately sided with RMA in finding that the APH Yield Exclusion is not self-executing. “Principles of statutory construction confirm RMA was reasonable in its interpretation that the [Insurance] Act did not require the APH Yield Exclusion to be implemented for the 2015 crop year. RMA was not unreasonable or arbitrary or capricious in asserting, based on basic tenets of statutory interpretation, that action on its part was necessary to implement the APH Yield Exclusion.” Appeal Determination at 10.

I agree with the Administrative Judge and find that RMA acted in accordance with the law when it exercised discretion to determine the appropriate time to implement the APH Yield Exclusion with regard to 2015 winter wheat. As noted above, when reviewing an agency’s construction of a statute which it administers,[13] a reviewing body must consider two questions: (1) whether Congress has directly spoken to the precise question at issue; and, (2) if the statute is silent or ambiguous with respect to the specific issue, whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43; see also NAD Case No. 2004W000865 (Dir. Rev., Nov. 9, 2004) (stating that “NAD gives deference to an agency’s interpretation of a statute as long as it is reasonable”).[14]

In this instance, the pertinent statutory language is ambiguous. Neither sub-paragraph of Section 508(g)(4) of the Insurance Act cited by Appellants and quoted above precisely answers the question of whether Congress intended for the APH Yield Exclusion to be self-executing and immediately available. The language of 7 U.S.C. § 1508(g)(4)(C), which codifies the APH Yield Exclusion, is completely silent on the issue. Likewise, the plain language of 7 U.S.C. §1508(g)(4)(A), the so-called “applicability” provision, is at best ambiguous. On its face, the applicability provision states that the adjustment in actual history provisions of paragraph 4 of sub-section (g) of Section 508 of the Insurance Act “apply . . . for any of the 2001 and subsequent crop years.” Nothing in this provision states that the crop yield adjustment provisions of Section 508(g)(4) are self-implementing or immediately available. The language merely provides an applicable date range for the crop yield adjustment provisions, starting in 2001 and continuing for “subsequent crop years.”[15]

In sum, I find unpersuasive Appellants’ argument that the plain language of the Insurance Act makes the APH Yield Exclusion self-executing and immediately available to crop insurance policy holders. Thus, to resolve the dispute presented in these consolidated appeals, I must consider, under step 2 of Chevron, whether RMA’s interpretation of the statutory language is a permissible construction of the statute. See Fairview Deaconess Hosp., 749 F.2d at 1259 (rejecting appellants’ argument that two statutory passages involving payment provisions under the Medicare program are “unambiguously self-defining or self-executing” and finding instead that “it is necessary to consider” the Secretary’s interpretation of the statutory language). For the reasons explained below, I find that RMA’s interpretation of the APH Yield Exclusion, as embodied in the RMA Letter, is a reasonable and permissible construction of the Insurance Act.

Before turning to RMA’s interpretation of the Insurance Act, I consider Appellants’ argument that the legislative history of the 2014 Farm Bill supports their position that Congress intended for the APH Yield Exclusion to be self-executing. In support of their argument Appellants cite statements made by two congressmen at a hearing of the House Agriculture Subcommittee on General Farm Commodities and Risk Management convened on July 10, 2014. Appellants quote Congressman XXXXX, one of the drafters of the 2014 Farm Bill, who stated in his prepared remarks:

The APH [Yield Exclusion] is meant to be self-executing. Farmers were not meant to have to ask permission to exclude qualifying yields. The right is the producers, and it became the producers’ right on the day the farm bill became law.

Agency Record at 13 (containing the Opening Statement of XXXXX).

Another lawmaker, Congressman XXXXX, stated:

[The decrease in the amount of production producers may insure] is precisely why I included the APH [Yield Exclusion] in the [2014 Farm Bill]. For anyone who is facing the prospect of drought or who has been suffering through years of prolonged drought, this provision is designed to provide immediate relief.

Congress was clear. All producers who have been affected by drought should be able to exclude those years, and they should be able to do so immediately, I understand there are challenges, but I think producers affected by drought deserve the effort.

Id. at 17-18 (containing the Opening Statement of XXXXX).

I am not persuaded by these statements of two congressmen that Congress intended the APH Yield Exclusion to be self-executing. First, the statements relied upon by Appellants were made after Congress’ enacted the 2014 Farm Bill; thus, they offer little or no insight into Congress’ intent when it passed the 2014 Farm Bill, including the APH Yield Exclusion. See XXXXX Valley Authority v. Hill, 437 U.S. 153, 209 (1978) (XXXXX, XXXXX, XXXXX, XXXXX, dissenting) (reaffirming Supreme Court precedence “that post enactment statements by individual Members of Congress as to the meaning of a statute are entitled to little or no weight”).

Second, the record contains other statements under cutting the notion that the APH Yield Exclusion was intended to be self-executing and immediately available to producers. For example, Congressman XXXXX, whom Appellants cite in support of their position, also offered this statement during the July 10, 2014 hearing before the Subcommittee: “All we ask on [the] APH [Yield Exclusion] is that some effort be made to partially implement the provision in time for 2015 where relief is needed most.” Agency Record at 14 (containing the Prepared Statement of XXXXX) (emphasis added).

While it was clearly the desire of Congressmen XXXXX and XXXXX that the APH Yield Exclusion be made available to farmers as soon as possible, their positions did not necessarily represent a unanimous or even consensus view of the Congress that the APH Yield Exclusion was intended to be self-executing.

While the intent of Congress regarding the implementation of the APH Yield Exclusion cannot clearly be discerned from the statutory language or the legislative history, senior officials at USDA have made it clear that they interpret the law to require a series of administrative actions before the APH Yield Exclusion can be implemented. This point was forcefully articulated by XXXXX, the Under Secretary for USDA Farm and Foreign Agricultural Services, in his testimony before the Subcommittee on December 10, 2014:

To implement the APH [Yield Exclusion], substantial programming modifications must be made to the core foundation of RMA’s business support systems to validate and accept the APH [Yield Exclusions] impacting insurance guarantees and associated premium costs submitted by AIPs. These adjustments include modifications to be able to determine those producers who may qualify for the yield exclusion, for what years, what crops, what practices, and tracking for producer’s elections. Furthermore, RMA’s Policy Acceptance Storage System Yield and Yield History processing records have to be modified to validate proper eligibility for which years can and cannot be substituted. This will be accomplished by reprogramming RMA’s Actuarial Filing System to develop a new actuarial processing standard to detail which years are eligible for exclusion appropriately for each crop and county.

Appellants’ Exhibit I at 53-54 (containing Under Secretary XXXXX response to Question 11 from XXXXX).

Under Secretary XXXXX went on to explain the efforts necessary to determine which counties and historical years will qualify for the APH Yield Exclusion and RMA’s responsibility to make these calculations on an irrigated and non-irrigated practice basis. He outlined why these actions are necessary not only to implement the APH Yield Exclusion based on the parameters set forth by Congress in the Insurance Act, but also under other laws, including the Improper Payments Elimination and Recovery Improvement Act of 2012. Id. at 53-55.[16]

Under the circumstances presented in this case, I find that RMA’s interpretation of the statutory language as providing it with authority to implement the APH Yield Exclusion only after necessary administrative steps have been taken is reasonable. Ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in a reasonable fashion. Filling these gaps often involves making difficult policy choices. Accordingly, where a statute is ambiguous, and the implementing agency’s construction is reasonable, I defer to the agency’s construction of the statute. Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 980 (2005) (citing Chevron, 467 U.S. at 843-844 and 865-866).

The record in this case clearly demonstrates that RMA acted reasonably and expeditiously to implement the APH Yield Exclusion. Given the data-intensive nature of the provision, the impact that the benefit has on crop insurance premiums, and the extensive administrative work needed to address all of the other requirements introduced by the legislation, RMA offered a valid rationale for not implementing the APH Yield Exclusion immediately upon passage of the 2014 Farm Bill. In this case, while the interpretation that RMA advances may not be favorable to producers such as Appellants and may not achieve implementation within the timeframe that at least some members of Congress desired, I cannot conclude that it represents an impermissible construction of the statute. Thus, I uphold RMA’s determination that the APH Yield Exclusion was not available to Appellants for their 2015 winter wheat crops, as reflected in the RMA Letter, because it is consistent with applicable laws and regulations, and therefore it is not erroneous.

Conclusion

In summary, I reverse the Appeal Determination’s finding that the RMA Letter is not an adverse decision, and I uphold RMA’s adverse decision on the grounds that it is consistent with applicable laws and regulations, and therefore it is not erroneous.

/S/

08/05/2015

Steven C. Silverman

Director

Date

[1] NAD’s regulations provide that a Hearing Officer will adjudicate an appeal that a program participant files with NAD. See 7 C.F.R. § 11.8. In a memorandum dated November 25, 2014, I changed the working title for Hearing Officers to “Administrative Judge” for all adjudicative duties, including conducting hearings and issuing determinations under 7 C.F.R. Part 11. This change became effective on December 1, 2014; as this appeal was filed before December 1, 2014, and then resolved after that date, the titles Hearing Officer and Administrative Judge appear throughout the administrative record in this case.

[2] References to the record in this determination are made to the case file in NAD Case No. 2015W000089.

[3] See Notice of Consolidated Pre-Hearing Conference, dated December 16, 2014 (stating “Appellants requested consolidation of their appeals and agreed to the disclosure among the consolidated group of personal information (names, address, etc.)”); see also Risk Management Agency Position Paper, dated December 15, 2014 (stating “All of the above stated appellants have filed identical notices of appeal so [RMA] requests that all of these appeals be consolidated into one case”).

[4] For example, Appellant XXXXX owns a crop insurance policy known as a XXXXX policy for its 2015 winter wheat crop. See Request for Appeal at 1.

[5] RMA has promulgated separate regulations governing its own, internal appeals process, and in those regulations the agency has embraced a similarly broad definition of the term “participant.” A participant is an “individual or entity that has applied for crop insurance or who holds a valid crop insurance policy that was in effect for the previous crop year and continues to be in effect for the current crop year.” 7 C.F.R. § 400.90 (definition of “participant”). Given the record here, it is clear that Appellants also qualify as participants within the meaning of RMA’s regulations.

[6] RMA does not argue that it would have been impossible for the agency to respond in a different way to Appellants’ requests to obtain the benefit of the APH Yield Exclusion for their 2015 winter wheat crops. Indeed, the record shows that USDA moved expeditiously to make the APH Yield Exclusion available for 11 crops in the spring of 2015, which was earlier than expected. Thus, this is not a case in which a participant has sought something that was impossible for the agency to provide or that the law does not allow the agency to provide. To the contrary, the 2014 Farm Bill established the right of participants to elect the APH Yield Exclusion and Appellants argue that they were entitled to receive the benefit of the exclusion for their 2015 winter wheat crops. Under these circumstances, I find that Appellants have alleged facts adequate to establish NAD’s jurisdiction to review a denial of a program benefit within the meaning of the Act and NAD’s regulations.

[7] RMA argues that NAD cannot exercise jurisdiction over the RMA Letter because it was the Secretary who made the decision to deny participants the benefit of the APH Yield Exclusion for the 2015 winter wheat crop, not RMA. See Agency Opposition to Request for Director’s Review at 2-3 and 15. I find RMA’s argument disingenuous. The RMA Letter was written and issued by the RMA Administrator, not the Secretary. Moreover, the Secretary, as the chief executive of USDA, provides direction to every agency of USDA, and often he may even direct an agency to adopt a specific policy or position. Such ubiquitous involvement by the Secretary in the affairs of USDA does not prevent NAD from reviewing adverse decisions actually issued and implemented by agencies otherwise subject to NAD’s jurisdiction. Such an outcome would undermine Congress’ intent when it created NAD to provide NAD with an independent authority to review “all appeals from decisions made under the farm programs, farmer loan programs, and other producer-related programs,” H.R. Rep. No. 103-714, at 115 (1994) (emphasis added), not just those that failed to have the direct involvement of the Secretary.

[8] NAD repeatedly has held that participants may seek review of decisions that are based on an individual application of an agency’s regulations, policies, or specified criteria. See NAD Case No. 2015E000067 (Appealability Det., Jan. 5, 2015) (finding a decision by Rural Development appealable where the participant alleged that the agency incorrectly scored and assessed point values to its application even though the agency argued that it relied on criteria applicable to all participants); see also NAD Case No. 2015E000038 (Appealability Det., Nov. 12, 2014) (determining a decision by the Natural Resources Conservation Service (NRCS) appealable where the participant alleged that NRCS did not properly evaluate the heavy use protection area when it made its decision and therefore there appeared to be a dispute over a matter specific to the participant’s contract).

[9] Likewise, USDA has made clear that it does not interpret the Act as constraining NAD from reviewing any matter of general applicability. In its response to public comments upon promulgating NAD’s final rules of procedure, USDA noted that “inclusion of [the general applicability] language does not reflect an intent to bind NAD to arbitrary interpretations of statutes or regulations by agency officials. Any unpublished, generally applicable interpretations of laws and regulations may be relied upon only to the extent permitted by the APA [Administrative Procedure Act] and interpretations thereof by relevant caselaw. NAD is bound to decide appeals in accordance with law; therefore, if an interpretation is not permissible under the APA, then NAD cannot rely upon that interpretation to sustain an agency decision.” National Appeals Division Rules of Procedure, 64 Fed. Reg. 33367, 33372 (June 23, 1999).

[10] I note that not every Appellant received written notice of the RMA decision from her AIP. See Appellants’ Exhibit A (reflecting that 21 of the 40 Appellants received an AIP notice in response to their APH Yield Exclusion election); see also Hearing Audio, Track 1 at 01:15:10-01:15:31 (containing the testimony of Appellant XXXXX that he did not receive a response from his AIP to his APH Yield Exclusion election). However, it is reasonable to conclude, based on the record, that each Appellant understands that their request to elect the APH Yield Exclusion has been rejected. See, e.g., Appellants’ Request for Director Review at 5 (stating that Appellants have not received the APH Yield Exclusion).

[11] While the Administrative Judge did not explicitly render a decision on the merits, she did devote considerable attention in her Appeal Determination to Appellants’ legal argument that RMA failed to act in a timely manner, which, as noted above, can provide a jurisdictional basis for NAD reviewing an adverse decision. In reaching the conclusion that RMA did not fail to act in a timely manner, the Administrative Judge essentially evaluated the same points and authorities I must now evaluate to render a decision on the merits. Moreover, the Administrative Judge thoroughly evaluated the record and the arguments of both parties on the issue of whether RMA acted lawfully when it issued the RMA Letter. In light of this, I find there would be little gained by remanding these appeals to the Administrative Judge for a determination of issues she has already considered.

[12] Appellants spend considerable time in their Request for Director Review attempting to distinguish between a “bill” and a “statute.” Apparently, the purpose of this exercise is to convince me that I should focus on the provisions of the Insurance Act, rather than the 2014 Farm Bill, to determine whether the APH Yield Exclusion should be deemed self-executing and immediately available. Appellants’ Request for Director Review at 9-11. I find that both statutes—the 2014 Farm Bill and the Insurance Act—contain provisions relevant to my resolution of these appeals; however, for the reasons stated below, neither statute contains language unambiguously supporting Appellants’ position that the APH Yield Exclusion is self-executing.

[13] The RMA Letter at issue in these appeals is an application by RMA of its Interim Rule, which amends the Basic Provisions at 7 C.F.R. § 457.8 and interprets 7 U.S.C. § 1508(g)(4)(C). Chevron, 467 U.S. at 843-44 (limiting deference to determining whether to give legal effect to a regulation that interprets a statute).

[14] I conclude that the RMA letter, like a regulation, is an interpretation of the relevant statute. That the RMA letter is not a regulation is not controlling here. A similar conclusion was reached by the Eighth Circuit in XXXXX. v. Federal Crop Ins. Corp., 426 F.3d 976 (8th Cir. 2005). In that case, the Eighth Circuit accorded deference to FCIC’s interpretation of a “Manager’s Bulletin” even though the agency’s interpretation did not involve a regulation. The court reasoned that “the reasons for deferring to an agency’s interpretation of its regulations apply equally to the [agency’s] interpretation of the Manager’s Bulletin: Because the [agency] possesses a ‘unique expertise’ in the ‘complex ... circumstances’ of reinsuring [Multi Peril Crop Insurance] policies, ‘we presume that the power authoritatively to interpret’ such FCIC pronouncements as the Manager’s Bulletin ‘is a component of the [agency’s] delegated lawmaking powers.’” Id., 426 F.3d at 979 (internal citations omitted).

[15] I also agree with the analysis of the Administrative Judge, who noted that accepting Appellants’ interpretation of the APH Yield Exclusion as immediately available would render meaningless several key provisions of the Insurance Act, including the requirement of Section 506(n), which requires RMA to operate the crop insurance program in an actuarially sound manner, the requirement of Section 508(a)(1), which mandates RMA to obtain sufficient actuarial data available before offering crop insurance coverage, and the provisions of Section 508(g)(4)(C)(iii), which require RMA to make separate determinations for irrigated and non-irrigated acreage. See Appeal Determination at 9. It is a well-established principle of statutory interpretation that reviewing bodies should avoid adopting a construction that voids another part of the statute or renders other statutory provisions meaningless. See, e.g., Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 489 n.13 (2014).

[16] It bears noting that the APH Yield Exclusion is not only a data-intensive provision to implement, as evidenced by Under Secretary XXXXX remarks, but also a last minute addition to the 2014 Farm Bill. Accordingly, USDA was not able to commence work on the program prior to passage of the 2014 Farm Bill as it was with many other programs introduced by the legislation. See Appellants’ Exhibit I at 17 (containing the testimony of Under Secretary XXXXX). Nevertheless, the record shows that USDA acted expeditiously to respond to the concerns expressed by several congressmen at the July 10, 2014 Subcommittee hearing. As noted above, the Secretary announced in October of 2014 that 11 crops would be eligible for the APH Yield Exclusion in the spring of 2015, which was earlier than expected. USDA further explained that the reason 2015 winter wheat would not be eligible for the APH Yield Exclusion was due to necessary work not being completed. Moreover, USDA noted that allowing for late election of the APH Yield Exclusion for winter wheat would open up AIPs to a level of risk they did not anticipate when they negotiated existing risk sharing agreements with USDA. Appellants’ Exhibit I at 55.