Collapse to view only § 3811. Program ineligibility

§ 3811. Program ineligibility
(a) In generalExcept as provided in section 3812 of this title, and notwithstanding any other provision of law, any person who in any crop year produces an agricultural commodity on a field on which highly erodible land is predominant, or designates land on which highly erodible land is predominant to be set aside, diverted, devoted to conservation uses, or otherwise not cultivated under a program administered by the Secretary to reduce production of an agricultural commodity, as determined by the Secretary shall be ineligible for—
(1) as to any commodity produced during that crop year by such person—
(A) contract payments under a production flexibility contract, marketing assistance loans, and any type of price support or payment made available under the Agricultural Market Transition Act [7 U.S.C. 7201 et seq.], the Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.), or any other Act;
(B) a farm storage facility loan made under section 4(h) of the Commodity Credit Corporation Charter Act (15 U.S.C. 714b(h));
(C) a disaster payment;
(D) a loan made, insured, or guaranteed under the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) or any other provision of law administered by the Consolidated Farm Service Agency,1
1 See Change of Name note below.
if the Secretary determines that the proceeds of such loan will be used for a purpose that will contribute to excessive erosion of highly erodible land; or
(E) any portion of the premium paid by the Federal Crop Insurance Corporation for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.), on the condition that if a person is determined to have committed a violation under this subsection during a crop year, ineligibility under this subparagraph shall—
(i) only apply to reinsurance years subsequent to the date of final determination of a violation, including all administrative appeals; and
(ii) not apply to the existing reinsurance year or any reinsurance year prior to the date of final determination;
(2) a payment made under section 4 or 5 of the Commodity Credit Corporation Charter Act (15 U.S.C. 714b or 714c) during such crop year for the storage of an agricultural commodity acquired by the Commodity Credit Corporation; or
(3) during the crop year—
(A) a payment made pursuant to a contract entered into under the environmental quality incentives program under subpart A of part IV of subchapter IV;
(B) a payment under any other provision of subchapter IV;
(C) a payment under section 2201 or 2202 of this title; or
(D) a payment, loan, or other assistance under section 1003 or 1006a of this title.
(b) Highly erodible land

The Secretary shall have, and shall not delegate to any private person or entity, authority to determine whether a person has complied with this subchapter.

(Pub. L. 99–198, title XII, § 1211, Dec. 23, 1985, 99 Stat. 1506; Pub. L. 101–624, title XIV, § 1411, Nov. 28, 1990, 104 Stat. 3569; Pub. L. 102–237, title II, § 204(1), Dec. 13, 1991, 105 Stat. 1854; Pub. L. 104–127, title III, § 311, Apr. 4, 1996, 110 Stat. 982; Pub. L. 107–171, title II, § 2002(a), May 13, 2002, 116 Stat. 233; Pub. L. 113–79, title II, §§ 2611(a)(1), 2713(b), Feb. 7, 2014, 128 Stat. 762, 772; Pub. L. 115–334, title II, § 2301(d)(1)(A), Dec. 20, 2018, 132 Stat. 4553.)
§ 3812. Exemptions
(a) Persons eligible for program benefits in connection with production or reduced production of crops on certain lands; eligibility based upon compliance with conservation plan by January 1, 1995; minimization of documentation
(1) During the period beginning on December 23, 1985, and ending on the later of January 1, 1990, or the date that is 2 years after the date land on which a crop of an agricultural commodity is produced was mapped by the Soil Conservation Service for purposes of classifying such land under the land capability classification system in effect on December 23, 1985, except as provided in paragraph (2), no person shall become ineligible under section 3811 of this title for program loans, payments, and benefits as the result of the production of a crop of an agricultural commodity on any land that was—
(A) cultivated to produce any of the 1981 through 1985 crops of an agricultural commodity; or
(B) set aside, diverted or otherwise not cultivated under a program administered by the Secretary for any such crops to reduce production of an agricultural commodity.
(2)Eligibility based on compliance with conservation plan.—
(A)In general.—If, as of January 1, 1990, or 2 years after the Soil Conservation Service has completed a soil survey for the farm, whichever is later, a person is actively applying a conservation plan, such person shall have until January 1, 1995, to comply with the plan without being subject to program ineligibility.
(B)Minimization of documentation.—In carrying out this subsection, the Secretary, Soil Conservation Service, and local soil conservation districts shall minimize the quantity of documentation a person must submit to comply with this paragraph.
(C)Crop insurance.—
(i)Operations new to compliance.—Notwithstanding section 3811(a) of this title, in the case of a person that is subject to section 3811 of this title for the first time solely due to the amendment made by section 2611(a) of the Agricultural Act of 2014, any person who produces an agricultural commodity on the land that is the basis of the payments described in section 3811(a)(1)(E) of this title shall have 5 reinsurance years after the date on which such payments become subject to section 3811 of this title to develop and comply with an approved conservation plan so as to maintain eligibility for such payments.
(ii)Existing operations with prior violations.—Notwithstanding section 3811(a) of this title, in the case of a person that the Secretary determines would have been in violation of section 3811(a) of this title if the person had continued participation in the programs requiring compliance at any time after February 7, 2014, and is currently in violation of section 3811(a) of this title, the person shall have 2 reinsurance years after the date on which the payments described in section 3811(a)(1)(E) of this title become subject to section 3811 of this title to develop and comply with an approved conservation plan, as determined by the Secretary, so as to maintain eligibility for such payments.
(iii)Applicable reinsurance year.—Ineligibility for the payment described in section 3811(a)(1)(E) of this title for a violation under this subparagraph during a crop year shall—(I) only apply to reinsurance years subsequent to the date of a final determination of a violation, including all administrative appeals; and(II) not apply to the existing reinsurance year or any reinsurance year prior to the date of the final determination.
(3) Any person who owns or operates highly erodible land that was the subject of a contract entered into under subpart B of part I of subchapter IV shall only be required to apply a conservation plan established under this subchapter. The person shall not be required to meet a higher conservation standard than the standard applied to other highly erodible cropland located within the same area. If the person’s conservation plan requires structures to be constructed, the person shall have until 2 years after the expiration of such contract to comply with the conservation plan, or a longer period of time if the Secretary determines compliance is otherwise technically or economically not feasible, or such longer period is otherwise appropriate, before such person will be subject to program ineligibility with respect to such land under section 3811 of this title.
(4) On the expiration of a contract entered into under subpart B of part I of subchapter IV, the provisions of this subchapter shall apply to the acreage that was the subject of such contract.
(b) Persons eligible for program benefits in connection with production of certain planted crops or production of crops on highly erodible landNo person shall become ineligible under section 3811 of this title for program loans, payments, and benefits as the result of the production of a crop of an agricultural commodity—
(1) planted before December 23, 1985; or
(2) planted during any crop year beginning before December 23, 1985.
(c) Ineligibility for loans and payments under section 3811No person shall become ineligible under section 3811 of this title for program loans, payments, and benefits as the result of the production of a crop of an agricultural commodity or the designation of land to be set aside, diverted, devoted to conservation uses, or otherwise not cultivated under a program administered by the Secretary to reduce production of an agricultural commodity (hereafter in this subsection referred to as “set aside”)—
(1) on highly erodible land in an area—
(A) within a conservation district, under a conservation system that has been approved by a conservation district after the district has determined that the conservation system is in conformity with technical standards set forth in the Soil Conservation Service technical guide for such district; or
(B) not within a conservation district, under a conservation system determined by the Secretary to be adequate for the protection of highly erodible land that has been set aside or for the production of such agricultural commodity on any highly erodible land subject to this chapter; or
(2) on highly erodible land that is planted or set aside in reliance on a determination by the Soil Conservation Service that such land was not highly erodible land, except that this paragraph shall not apply to any agricultural commodity that was planted or set aside on any land after the Soil Conservation Service determines that such land is highly erodible land; or
(3) on highly erodible land planted to alfalfa during each of the 1981 through 1985 crop years as part of a rotation practice approved by the Secretary, if the person has submitted a conservation plan, in which case, such person shall have until June 1, 1988, to comply with the plan without being subject to program ineligibility under section 3811 of this title.
(d) Program ineligibility inapplicable to pre-December 23, 1985, section 3811 loans

Section 3811 of this title shall not apply to a loan described in section 3811 of this title made before December 23, 1985.

(e) Limitations on ineligibility for tenantsIf a tenant is determined to be ineligible for payments and other benefits under section 3811 of this title, the Secretary may limit such ineligibility only to the farm which is the basis for such ineligibility determination if—
(1) the tenant has established to the satisfaction of the Secretary that—
(A) the tenant has made a good faith effort to meet the requirements of this section, including enlisting the assistance of the Secretary to obtain a reasonable conservation plan for such farm; and
(B) the landlord on the farm refuses to comply with such plan on such farm; and
(2) the Secretary determines that such lack of compliance is not a part of a scheme or device to avoid such compliance.
The Secretary shall provide an annual report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate concerning the ineligibility determinations limited during the previous 12-month period under this subsection.
(f) Graduated penalties
(1) Ineligibility

No person shall become ineligible under section 3811 of this title for program loans, payments, and benefits as a result of the failure of the person to actively apply a conservation plan, if the Secretary determines that the person has acted in good faith and without an intent to violate this subchapter.

(2) Eligible reviewersA determination of the Secretary, or a designee of the Secretary, under paragraph (1) shall be reviewed by the applicable—
(A) State Executive Director, with the technical concurrence of the State Conservationist; or
(B) district director, with the technical concurrence of the area conservationist.
(3) Period for implementation

A person who meets the requirements of paragraph (1) shall be allowed a reasonable period of time, as determined by the Secretary, but not to exceed 1 year, during which to implement the measures and practices necessary to be considered to be actively applying the conservation plan of the person.

(4) Penalties
(A) ApplicationThis paragraph applies if the Secretary determines that—
(i) a person has failed to comply with section 3811 of this title with respect to highly erodible cropland, and has acted in good faith and without an intent to violate section 3811 of this title; or
(ii) the violation—(I) is technical and minor in nature; and(II) has a minimal effect on the erosion control purposes of the conservation plan applicable to the land on which the violation has occurred.
(B) Reduction

If this paragraph applies under subparagraph (A), the Secretary shall, in lieu of applying the ineligibility provisions of section 3811 of this title, reduce program benefits described in section 3811 of this title that the producer would otherwise be eligible to receive in a crop year by an amount commensurate with the seriousness of the violation, as determined by the Secretary.

(5) Subsequent crop years

Any person whose benefits are reduced for any crop year under this subsection shall continue to be eligible for all of the benefits described in section 3811 of this title for any subsequent crop year if, prior to the beginning of the subsequent crop year, the Secretary determines that the person is actively applying a conservation plan according to the schedule specified in the plan.

(g) Preparation or revision of conservation planThe Secretary, in providing assistance to an individual in the preparation or revision of a conservation plan under this section, shall provide such individual with information—
(1) concerning cost effective and applicable erosion control measures that may be available to such individual to meet the requirements of this section; and
(2) concerning crop flexibility, base adjustment, and conservation assistance options that may be available to such individual to meet the requirements of this section, including the provisions of titles X, XII, and XIII of the Food, Agriculture, Conservation, and Trade Act of 1990 (or the amendments made by such titles).
(h) Noncommercial production of agricultural commodities

Section 3811 of this title shall not apply to the noncommercial production of agricultural commodities on a farm if such production is limited to two acres or less and if the Secretary determines that such production is not intended to circumvent the conservation requirements otherwise applicable to lands under this subchapter.

(Pub. L. 99–198, title XII, § 1212, Dec. 23, 1985, 99 Stat. 1506; Pub. L. 100–28, §§ 2, 3, Apr. 24, 1987, 101 Stat. 291; Pub. L. 101–624, title XIV, § 1412, Nov. 28, 1990, 104 Stat. 3569; Pub. L. 102–237, title II, § 204(2), Dec. 13, 1991, 105 Stat. 1854; Pub. L. 104–127, title III, §§ 301(d), 312–314, Apr. 4, 1996, 110 Stat. 981–983; Pub. L. 110–234, title II, § 2002, May 22, 2008, 122 Stat. 1027; Pub. L. 110–246, § 4(a), title II, § 2002, June 18, 2008, 122 Stat. 1664, 1755; Pub. L. 113–79, title II, § 2611(a)(2), Feb. 7, 2014, 128 Stat. 762.)
§ 3812a. Development and implementation of conservation plans and conservation systems
(a) Technical requirements
In connection with the standards and guidelines contained in Natural Resources Conservation Service field office technical guides applicable to the development and use of conservation measures and management practices as part of a conservation system, the Secretary shall ensure that the standards and guidelines permit a person to use a conservation system that—
(1) is technically and economically feasible;
(2) is based on local resource conditions and available conservation technology;
(3) is cost-effective; and
(4) does not cause undue economic hardship on the person applying the conservation system under the person’s conservation plan.
(b) Measurement of erosion reduction

For the purpose of determining whether there is a substantial reduction in soil erosion on a field containing highly erodible cropland, the measurement of erosion reduction achieved by the application of a conservation system under a person’s conservation plan shall be based on the estimated annual level of erosion at the time of the measurement compared to the estimated annual level of erosion that existed before the implementation of the conservation measures and management practices provided for in the conservation system.

(c) Residue measurement
(1) Responsibilities of the Secretary
For the purpose of measuring the level of residue on a field, the Secretary shall—
(A) take into account any residue incorporated into the top 2 inches of soil, as well as the growing crop, in the measurement;
(B) provide technical guidelines for acceptable residue measurement methods;
(C) provide a certification system for third parties to perform residue measurements; and
(D) provide for the acceptance and use of information and data voluntarily provided by the producer regarding the field.
(2) Acceptance of producer measurements

Annual residue measurements supplied by a producer (including measurements performed by a certified third party) shall be used by the Secretary if the Secretary determines that the measurements indicate that the residue level for the field meets the level required under the conservation plan.

(d) Certification of compliance
(1) In general

For the purpose of determining the eligibility of a person for program benefits specified in section 3811 of this title at the time application is made for the benefits, the Secretary shall permit the person to certify that the person is complying with the person’s conservation plan.

(2) Status reviews

If a person makes a certification under paragraph (1), the Secretary shall not be required to carry out a review of the status of compliance of the person with the conservation plan under which the conservation system is being applied.

(3) Revisions and modifications

The Secretary shall permit a person who makes a certification under paragraph (1) with respect to a conservation plan to revise the conservation plan in any manner, if the same level of conservation treatment provided for by the conservation system under the person’s conservation plan is maintained. The Secretary may not revise the person’s conservation plan without the concurrence of the person.

(4) Crop insurance premium assistance

For the purpose of determining the eligibility of a person for the payment described in section 3811(a)(1)(E) of this title, the Secretary shall apply the procedures described in section 3821(c)(3)(E) of this title and coordinate the certification process so as to avoid duplication or unnecessary paperwork.

(e) Technical assistance

The Secretary shall, using available resources and consistent with the Secretary’s other conservation responsibilities and objectives, provide technical assistance to a person throughout the development, revision, and application of the conservation plan and any conservation system of the person. At the request of the person, the Secretary may provide technical assistance regarding conservation measures and management practices for other lands of the person that do not contain highly erodible cropland.

(f) Encouragement of on-farm research

To encourage on-farm conservation research, the Secretary may allow a person to include in the person’s conservation plan or a conservation system under the plan, on a field trial basis, practices that are not currently approved but that the Secretary considers have a reasonable likelihood of success.

(Pub. L. 99–198, title XII, § 1213, as added Pub. L. 104–127, title III, § 315(a)(2), Apr. 4, 1996, 110 Stat. 984; amended Pub. L. 113–79, title II, § 2611(a)(3), Feb. 7, 2014, 128 Stat. 763.)
§ 3813. Soil surveys

The Secretary shall, as soon as is practicable after December 23, 1985, complete soil surveys on those private lands that do not have a soil survey suitable for use in determining the land capability class for purposes of this subchapter. In carrying out this section, the Secretary shall, insofar as possible, concentrate on those localities where significant amounts of highly erodible land are being converted to the production of agricultural commodities.

(Pub. L. 99–198, title XII, § 1214, formerly § 1213, Dec. 23, 1985, 99 Stat. 1507; renumbered § 1214, Pub. L. 104–127, title III, § 315(a)(1), Apr. 4, 1996, 110 Stat. 983.)
§ 3814. Notice and investigation of possible compliance deficiencies
(a) In general

An employee of the Department of Agriculture who observes a possible compliance deficiency or other potential violation of a conservation plan or this subchapter while providing on-site technical assistance shall provide to the responsible persons, not later than 45 days after observing the possible violation, information regarding actions needed to comply with the plan and this subchapter. The employee shall provide the information in lieu of reporting the observation as a compliance violation.

(b) Corrective action

The responsible persons shall attempt to correct the deficiencies as soon as practicable after receiving the information.

(c) Review

If the corrective action is not fully implemented not later than 1 year after the responsible persons receive the information, the Secretary may conduct a review of the status of compliance of the persons with the conservation plan and this subchapter.

(Pub. L. 99–198, title XII, § 1215, as added Pub. L. 104–127, title III, § 316, Apr. 4, 1996, 110 Stat. 985.)