On April 16, 2020, the Risk Management Agency (RMA) published Product Management Bulletin: PM-20-024, regarding interpretations of procedures under the Whole-Farm Revenue Protection (WFRP) program. https://www.rma.usda.gov/en/Policy-and-Procedure/Bulletins-and-Memos/2020/PM-20-024. RMA states that the WFRP policy states that producers and approved insurance (AIPs) providers can obtain interpretations of policy or procedure in accordance with 7 C.F.R. part 400, subpart X. RMA states that requests for interpretations of policies published in the Federal Register are considered binding on all participants, while requests for interpretations of other policies or procedures are considered binding only on the parties to the dispute. RMA states that WFRP is not published in the Federal Register so interpretations are only binding on participants to the dispute.
RMA states that it has receive multiple requests for interpretations of the same policy provisions, sometimes by the same parties. RMA states that while they are not considered binding on all parties, section 33(a)(1)(iii) of the WFRP policy states that the interpretations are generally applicable. RMA states that because the determination is a matter of general applicability, requests are considered solely on the basis of policy and procedure and are not viewed in light of any factual circumstance.
RMA states that it has determined that it is permissible to publish the interpretations of procedures relating to WFRP for informational purposes and to reduce administrative burdens. RMA states that, while not binding on all participants, publication of the interpretations of procedures allows RMA to provide guidance on specific topics, which may otherwise prompt requests for interpretations of procedures. RMA states this is intended to facilitate program participants and stakeholders, including the arbitrator, mediator, judge, or National Appeals Division (NAD), to resolve disputes without going through the interpretation of procedures process. Program participants may still request a binding interpretation of procedure for a particular circumstance, although precedent set by previous interpretations of procedures on a specific topic will be applied by RMA to further interpretations on that topic.
ANALYSIS – As an initial matter, the determination of whether the interpretation is binding on all program participants or just the participants to a dispute is determined by whether the policy is a regulation or not. To be considered a regulations the policy must be published in the Code of Federal Regulations, not the Federal Register. Policies can be published as proposed rules in the Federal Register but they are not effective and do not have the force of law necessary before they are binding on all participants. Once the policy has been published in the Code of Federal Regulations interpretations of their provisions will be binding on all participants.
While RMA may publish the interpretations of procedures on its website, subpart X expressly states they are not binding on anyone other than the parties to the dispute in which it is requested. Therefore, at best, publication of the interpretations of procedures may inform producers or AIPs of the futility of continuing with a dispute when they know what the interpretation of the policy will be. However, nothing in this bulletin obligates any arbitrator, mediator, judge or NAD accept these published interpretations of procedure or apply them to any other dispute. According to the WFRP policy and subpart X, producers and AIPs are still required to obtain interpretations of procedures for each dispute.
All statements made are opinions of the author and are not intended to provide legal opinions or legal advice.