USDA Did Not Have the Discretion to Implement New Program Benefitting Farmers

Updated: Apr 18

Combine dumping wheat onto grain cart pulled by a tractor. Image is by Shannon Dizmang

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Many of us are paying attention to the debate over the new Farm Bill and looking at changes to existing programs and potential new programs. One issue which may come up after passing a new Farm Bill is how quickly USDA must implement program changes or new programs. In Ausmus v. Perdue, a group of Colorado wheat farmers recently won their case after selecting a new crop insurance product before USDA’s Risk Management Agency (RMA) had implemented the product for wheat. The court ruled that although it might conflict with other duties under federal law, RMA had to allow producers to use the program after the effective date of the 2014 Farm Bill, and not when RMA implemented the regulations.


In 2015, Colorado wheat farmers provided their crop insurance agents with written requests electing to exclude all eligible crop years in calculating their actual production histories (APH). The crop insurance agents reached out to RMA seeking guidance on how to proceed with this request. RMA responded with guidance saying RMA authorized APH Yield Exclusion for the 2015 crop year for most crops, but not winter wheat. Based on this guidance, the crop insurance agents denied the requests for APH Yield Exclusion on winter wheat in 2015.

The Colorado wheat farmers filed an appeal with the National Appeals Division (NAD). On appeal, the NAD hearing officer determined that NAD did not have jurisdiction (aka, the ability) to hear the appeal. The wheat farmers requested a review by the NAD Director. The NAD Director reversed the hearing officer, finding NAD did have jurisdiction but also found that RMA had discretion on the appropriate time to implement Yield Exclusion for winter wheat. The farmers appealed this decision.

APH Yield Exclusion