dissenting.
I respectfully dissent. It is my considered belief that the district court’s judgment is correct and should be affirmed. Appellants essentially contend that crop insurance is not “available” within the meaning of 7 U.S.C. §§ 1444d(b)(2), 1445b-l(b)(2) (1982) (statutes) unless and until the government offers crop insurance for prevented planting losses. The Secretary, however, concluded that the plain language of the statutes and the legislative history require mandatory disaster payments for prevented planting losses to be phased out as all-risk crop insurance expands into new counties.
In my opinion the majority, although articulating the proper standard of review, has failed to apply the proper standard and has instead chosen its own interpretation of the statutes. The Supreme Court has stressed that the interpretation of an agency charged with administering a complex statutory scheme may not be set aside if it is consistent with the statutory language and legislative history. Chemical Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107-08, 84 L.Ed.2d 90 (1985). In Young v. Community Nutrition Inst., 476 U.S. 974, 106 S.Ct. 2360, 2364, 90 L.Ed.2d 959 (1986), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), the Supreme Court repeated the appropriate standard of review:
‘First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpreta*437tion. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible view of the statute____ [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.’
Under this standard, the Secretary’s interpretation of the term “available” in the statutes must be upheld because the interpretation is reasonable and also consistent with the legislative history.
Subparagraph A authorizes the Secretary to make payments to producers on farms if they are unable to plant because of natural disaster. Subparagraph C of the statutes provides, however, that “producers on a farm shall not be eligible for [mandatory] disaster payments ... if crop insurance is available to them under the Federal Crop Insurance Act____” Subparagraph D (which immediately follows Sub-paragraph C), by contrast, authorizes the Secretary to make discretionary disaster payments where “no crop insurance covered the loss because of transitional problems attendant to the federal crop insurance program.” Iowa ex rel. Miller v. Block, 771 F.2d 347, 349-50 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3312, 92 L.Ed.2d 725 (1986). The Secretary could reasonably conclude from Congress’ use of different language in Subparagraph C and Subparagraph D that Congress intended to establish different eligibility standards for mandatory and discretionary disaster payments for prevented planting losses. Sub-paragraph D expressly permits discretionary disaster payments only if federal crop insurance exists to cover the risk producing the loss. Significantly, Congress in Sub-paragraph C did not expressly condition the mandatory disaster payment in the same manner. Had Congress intended that the mandatory disaster payments be made where crop insurance covering the risk is unavailable, Congress would have said so as it did in Subparagraph D.
The history of these statutes also supports the Secretary’s interpretation. Congress has amended the disaster payment programs several times and has altered the eligibility requirements to meet the perceived needs at the time. In 1977 and 1978, Congress expressly provided that farmers without access to prevented planting crop insurance were eligible for prevented planting disaster payments. 7 U.S.C. § 1445b-l(b)(2)(A). In 1985, Congress again made mandatory disaster payments available to farmers who were prevented from planting because of natural disasters. These amendments, modifying eligibility requirements and thus expanding and contracting the scope of coverage, clearly indicate that Congress intended to place different conditions on the mandatory and discretionary disaster payments.
The Secretary’s interpretation of Subparagraph C is also consistent with the stated purpose of the statutes. Congress was concerned with the inequities and costs of the mandatory disaster payments and intended to replace the payments with federal crop insurance. Because of the possibility that federal crop insurance might not be available to all farmers during the transition period, Congress in Subparagraph D authorized the Secretary to make discretionary disaster payments to farmers for losses where federal crop insurance was unavailable to cover the losses. Congress thus anticipated that federal crop insurance might not be available to cover all risks, as in this case.
The district court applied the proper standard of review in this case and correctly determined that the Secretary’s interpretation of the statutes was reasonable. Thus, I would affirm the judgment of the district court.