16 U.S.C. § 3833 — Duties of the Secretary

Page 2369 TITLE 16—CONSERVATION § 3833 that would tend to defeat the purposes of this subpart; and (12) to comply with such additional provi- sions as the Secretary determines are desir- able and are included in the contract to carry out this subpart or to facilitate the practical administration of this subpart. (b) Conservation plans The plan referred to in subsection (a)(1) shall set forth— (1) the conservation measures and practices to be carried out by the owner or operator dur- ing the term of the contract; and (2) the commercial use, if any, to be per- mitted on the land during the term. (c) Foreclosure (1) In general Notwithstanding any other provision of law, an owner or operator who is a party to a con- tract entered into under this subpart may not be required to make repayments to the Sec- retary of amounts received under the contract if the land that is subject to the contract has been foreclosed on and the Secretary deter- mines that forgiving the repayments is appro- priate in order to provide fair and equitable treatment. (2) Resumption of control (A) In general This subsection shall not void the respon- sibilities of an owner or operator under the contract if the owner or operator resumes control over the land that is subject to the contract within the period specified in the contract. (B) Contract On the resumption of the control over the land by the owner or operator, the provi- sions of the contract in effect on the date of the foreclosure shall apply. (Pub. L. 99–198, title XII, § 1232, as added Pub. L. 107–171, title II, § 2101(a), May 13, 2002, 116 Stat. 242; amended Pub. L. 108–7, div. N, title II, § 212, Feb. 20, 2003, 117 Stat. 545; Pub. L. 110–234, title II, §§ 2107, 2108, May 22, 2008, 122 Stat. 1032, 1033; Pub. L. 110–246, § 4(a), title II, §§ 2107, 2108, June 18, 2008, 122 Stat. 1664, 1760, 1761; Pub. L. 113–79, title II, § 2003, Feb. 7, 2014, 128 Stat. 715; Pub. L. 115–334, title II, § 2205, Dec. 20, 2018, 132 Stat. 4543.) Editorial Notes CODIFICATION Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246. PRIOR PROVISIONS A prior section 3832, Pub. L. 99–198, title XII, § 1232, Dec. 23, 1985, 99 Stat. 1509; Pub. L. 101–512, title I, Nov. 5, 1990, 104 Stat. 1919; Pub. L. 101–624, title XIV, §§ 1433, 1447(a), Nov. 28, 1990, 104 Stat. 3579, 3605; Pub. L. 102–237, title II, § 204(5), Dec. 13, 1991, 105 Stat. 1855; Pub. L. 102–552, title V, § 516(a), Oct. 28, 1992, 106 Stat. 4136; Pub. L. 104–127, title III, § 332(a)(2), Apr. 4, 1996, 110 Stat. 994; Pub. L. 106–78, title VII, §§ 763, 769, Oct. 22, 1999, 113 Stat. 1173, 1174; Pub. L. 106–387, § 1(a) [title VIII, § 817, title XI, § 1103], Oct. 28, 2000, 114 Stat. 1549, 1549A–58, 1549A–77; Pub. L. 107–76, title VII, §§ 758(b), 759(b)(2), Nov. 28, 2001, 115 Stat. 741, related to duties of owners and operators, prior to the general amendment of this subpart by Pub. L. 107–171. AMENDMENTS 2018—Subsec. (a)(10) to (12). Pub. L. 115–334 added par. (10) and redesignated former pars. (10) and (11) as (11) and (12), respectively. 2014—Subsec. (a)(8). Pub. L. 113–79, § 2003(a), sub- stituted ‘‘except as provided in subsection (b) or (c) of section 3833 of this title;’’ for ‘‘except that the Sec- retary may permit, consistent with the conservation of soil, water quality, and wildlife habitat (including habitat during nesting seasons for birds in the area)— ’’ and struck out subpars. (A) to (D), which related to managed harvesting, commercial use in response to an emergency, grazing for the control of invasive species, and the installation of wind turbines, respectively. Subsec. (b). Pub. L. 113–79, § 2003(b), amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘The plan referred to in subsection (a)(1) of this sec- tion— ‘‘(1) shall set forth— ‘‘(A) the conservation measures and practices to be carried out by the owner or operator during the term of the contract; and ‘‘(B) the commercial use, if any, to be permitted on the land during the term; and ‘‘(2) may provide for the permanent retirement of any existing cropland base and allotment history for the land.’’ Subsec. (d). Pub. L. 113–79, § 2003(c), struck out subsec. (d). Text read as follows: ‘‘In the case of an authorized activity under subsection (a)(8) on land that is subject to a contract under this subpart, the Secretary shall reduce the rental payment otherwise payable under the contract by an amount commensurate with the eco- nomic value of the authorized activity.’’ 2008—Subsec. (a)(5) to (7). Pub. L. 110–246, § 2107, added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8). Subsec. (a)(8). Pub. L. 110–246, § 2108(a), added par. (8) and struck out former par. (8) which related to prohibi- tion against harvesting, grazing, or other commercial use of the forage, with exception authorizing Secretary to permit managed harvesting and grazing if appro- priate requirements were developed and timeframes identified or in a drought or other emergency, and ex- ception for the installation of wind turbines. Pub. L. 110–246, § 2107(1), redesignated par. (7) as (8). Former par. (8) redesignated (9). Subsec. (a)(9) to (11). Pub. L. 110–246, § 2107(1), redesig- nated pars. (8) to (10) as (9) to (11), respectively. Subsec. (d). Pub. L. 110–246, § 2108(b), added subsec. (d). 2003—Subsec. (a)(7)(A)(iii). Pub. L. 108–7 inserted be- fore semicolon ‘‘, except that this clause shall not apply to the 2002 calendar year, and the Secretary shall repay the owner or operator (in a manner determined by the Secretary) for any reduction in rental payments made to the owner or operator as the result of the ap- plication of this clause to the 2002 calendar year’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture. § 3833. Duties of the Secretary (a) Cost-share and rental payments In return for a contract entered into by an owner or operator under the conservation re- serve program, the Secretary shall— Page 2370 TITLE 16—CONSERVATION § 3833 (1) share the cost of carrying out the con- servation measures and practices set forth in the contract for which the Secretary deter- mines that cost sharing is appropriate and in the public interest, including the cost of fenc- ing and other water distribution practices, if applicable; and (2) for a period of years not in excess of the term of the contract, pay an annual rental payment, in accordance with section 3834(d) of this title, for— (A) the conversion of highly erodible crop- land, marginal pastureland, or other eligible lands normally devoted to the production of an agricultural commodity on a farm or ranch to a less intensive use; or (B) the development and management of grasslands for multiple natural resource conservation benefits, including to soil, water, air, and wildlife. (b) Specified activities permitted (1) In general The Secretary, in coordination with the ap- plicable State technical committee estab- lished under section 3861(a) of this title, shall permit certain activities or commercial uses of established cover on land that is subject to a contract under the conservation reserve pro- gram if— (A) those activities or uses— (i) are consistent with the conservation of soil, water quality, and wildlife habitat; (ii) are subject to appropriate restric- tions during the primary nesting season for birds in the local area that are eco- nomically significant, in significant de- cline, or conserved in accordance with Federal or State law; (iii) contribute to the health and vigor of the established cover; and (iv) are consistent with a site-specific plan, including vegetative management re- quirements, stocking rates, and frequency and duration of activity, taking into con- sideration regional differences, such as cli- mate, soil type, and natural resources; and (B) the Secretary, in coordination with the State technical committee, includes con- tract modifications— (i) without any reduction in the rental rate for— (I) emergency haying, emergency graz- ing, or other emergency use of the forage in response to a localized or regional drought, flooding, wildfire, or other emergency, on all practices, outside the primary nesting season, when— (aa) the county is designated as D2 (severe drought) or greater according to the United States Drought Monitor; (bb) there is at least a 40 percent loss in forage production in the county; or (cc) the Secretary, in coordination with the State technical committee, determines that the program can assist in the response to a natural disaster event without permanent damage to the established cover; (II) emergency grazing on all practices during the primary nesting season if payments are authorized for a county under the livestock forage disaster pro- gram under clause (ii) of section 9081(c)(3)(D) of title 7, at 50 percent of the normal carrying capacity deter- mined under clause (i) of that section, adjusted to the site-specific plan; (III) emergency haying on certain practices, outside the primary nesting season, if payments are authorized for a county under the livestock forage dis- aster program under clause (ii) of section 9081(c)(3)(D) of title 7, on not more than 50 percent of contract acres, as identified in the site-specific plan; (IV) grazing of all practices, outside the primary nesting season, if included as a mid-contract management practice under section 3832(a)(5) of this title; (V) the intermittent and seasonal use of vegetative buffer established under paragraphs (4) and (5) of section 3831(b) of this title that are incidental to agricul- tural production on land adjacent to the buffer such that the permitted use— (aa) does not destroy the permanent vegetative cover; and (bb) retains suitable vegetative structure for wildlife cover and shelter outside the primary nesting season; or (VI) grazing on all practices, outside the primary nesting season, if conducted by a beginning farmer or rancher; or (ii) with a 25 percent reduction in the an- nual rental rate for the acres covered by the authorized activity, including— (I) grazing not more frequently than every other year on the same land, ex- cept that during the primary nesting season, grazing shall be subject to a 50 percent reduction in the stocking rate specified in the site-specific plan; (II) grazing of all practices during the primary nesting season, with a 50 per- cent reduction in the stocking rate spec- ified in the site-specific plan; (III) haying and other commercial use (including the managed harvesting of biomass and excluding the harvesting of vegetative cover), on the condition that the activity— (aa) is completed outside the pri- mary nesting season; (bb) occurs not more than once every 3 years; and (cc) maintains 25 percent of the total contract acres unharvested, in accord- ance with a site-specific plan that pro- vides for wildlife cover and shelter; (IV) annual grazing outside the pri- mary nesting season if consistent with a site-specific plan that is authorized for the control of invasive species; and (V) the installation of wind turbines and associated access, except that in per- mitting the installation of wind tur- bines, the Secretary shall determine the number and location of wind turbines that may be installed, taking into ac- count— Page 2371 TITLE 16—CONSERVATION § 3833 (aa) the location, size, and other physical characteristics of the land; (bb) the extent to which the land contains threatened or endangered wildlife and wildlife habitat; and (cc) the purposes of the conservation reserve program under this subpart. (2) Conditions on haying and grazing (A) In general The Secretary may permit haying or graz- ing in accordance with paragraph (1) on any land or practice subject to a contract under the conservation reserve program. (B) Exceptions (i) Damage to vegetative cover Haying or grazing described in paragraph (1) shall not be permitted on land subject to a contract under the conservation re- serve program, or under a particular prac- tice, if haying or grazing for that year under that practice, as applicable, would cause long-term damage to vegetative cover on that land. (ii) Special agreements (I) In general Except as provided in subclause (II), haying or grazing described in paragraph (1) shall not be permitted on— (aa) land covered by a contract en- rolled under the State acres for wild- life enhancement program established by the Secretary; or (bb) land covered by a contract en- rolled under a conservation reserve en- hancement program established under section 3831a of this title or the Con- servation Reserve Enhancement Pro- gram established by the Secretary under this subpart. (II) Exception Subclause (I) shall not apply to land on which haying or grazing is specifically permitted under the applicable conserva- tion reserve enhancement program agreement or other partnership agree- ment entered into under this subpart. (c) Authorized activities on grasslands For eligible land described in section 3831(b)(3) of this title, the Secretary shall permit the fol- lowing activities: (1) Common grazing practices, including maintenance and necessary cultural practices, on the land in a manner that is consistent with maintaining the viability of grassland, forb, and shrub species appropriate to that lo- cality. (2) Haying, mowing, or harvesting for seed production, subject to appropriate restrictions during the nesting season for birds in the local area that are economically significant, in sig- nificant decline, or conserved in accordance with Federal or State law, as determined by the Secretary in consultation with the State technical committee. (3) Fire presuppression, fire-related rehabili- tation, and construction of fire breaks. (4) Grazing-related activities, such as fenc- ing and livestock watering. (d) Resource conserving use (1) In general Beginning on the date that is 1 year before the date of termination of a contract under the program, the Secretary shall allow an owner or operator to make conservation and land improvements for economic use that fa- cilitate maintaining protection of enrolled land after expiration of the contract. (2) Conservation plan The Secretary shall require an owner or op- erator carrying out the activities described in paragraph (1) to develop and implement a con- servation plan. (3) Re-enrollment prohibited Land improved under paragraph (1) may not be re-enrolled in the conservation reserve pro- gram for 5 years after the date of termination of the contract. (4) Payment reduction In the case of an activity carried out under paragraph (1), the Secretary shall reduce the payment otherwise payable under the contract by an amount commensurate with the eco- nomic value of the activity. (e) Natural disaster or adverse weather as mid- contract management In the case of a natural disaster or adverse weather event that has the effect of a manage- ment practice consistent with the conservation plan, the Secretary shall not require further management practices pursuant to section 3832(a)(5) of this title that are intended to achieve the same effect. (Pub. L. 99–198, title XII, § 1233, as added Pub. L. 107–171, title II, § 2101(a), May 13, 2002, 116 Stat. 245; amended Pub. L. 113–79, title II, § 2004, Feb. 7, 2014, 128 Stat. 715; Pub. L. 115–334, title II, § 2206, Dec. 20, 2018, 132 Stat. 4543.) Editorial Notes PRIOR PROVISIONS A prior section 3833, Pub. L. 99–198, title XII, § 1233, Dec. 23, 1985, 99 Stat. 1511, related to duties of Sec- retary, prior to the general amendment of this subpart by Pub. L. 107–171. AMENDMENTS 2018—Subsec. (a)(1). Pub. L. 115–334, § 2206(a)(1), in- serted ‘‘, including the cost of fencing and other water distribution practices, if applicable’’ after ‘‘in the pub- lic interest’’. Subsec. (a)(2). Pub. L. 115–334, § 2206(a)(2)(A), sub- stituted ‘‘, in accordance with section 3834(d) of this title,’’ for ‘‘in an amount necessary to compensate’’ in introductory provisions. Subsec. (a)(2)(A). Pub. L. 115–334, § 2206(a)(2)(B) in- serted ‘‘, marginal pastureland,’’ after ‘‘cropland’’ and ‘‘or’’ at end. Subsec. (a)(2)(B), (C). Pub. L. 115–334, § 2206(a)(2)(C), (D), redesignated subpar. (C) as (B) and struck out former subpar. (B) which read as follows: ‘‘the retire- ment of any base history that the owner or operator agrees to retire permanently; and’’. Subsec. (b). Pub. L. 115–334, § 2206(b), added subsec. (b) and struck out former subsec. (b) which described cer- tain activities or commercial uses that would be per- mitted on land subject to a contract under the con- servation reserve program. Page 2372 TITLE 16—CONSERVATION § 3834 Subsec. (e). Pub. L. 115–334, § 2206(c), added subsec. (e). 2014—Pub. L. 113–79 amended section generally. Prior to amendment, section also related to duties of the Secretary. § 3834. Payments (a) Timing The Secretary shall provide payment for obli- gations incurred by the Secretary under a con- tract entered into under this subpart— (1) with respect to any cost-sharing payment obligation incurred by the Secretary, as soon as practicable after the obligation is incurred; and (2) with respect to any annual rental pay- ment obligation incurred by the Secretary— (A) as soon as practicable after October 1 of each calendar year; or (B) at the option of the Secretary, at any time prior to such date during the year that the obligation is incurred. (b) Cost sharing payments (1) In general In making cost sharing payments to an owner or operator under a contract entered into under this subpart, the Secretary shall pay 50 percent of the cost of establishing water quality and conservation measures and prac- tices required under each contract for which the Secretary determines that cost sharing is appropriate and in the public interest. (2) Limitations (A) In general The Secretary shall ensure, to the max- imum extent practicable, that cost sharing payments to an owner or operator under this subpart, when combined with the sum of payments from all other funding sources for measures and practices described in para- graph (1), do not exceed 100 percent of the total actual cost of establishing those meas- ures and practices, as determined by the Secretary. (B) Mid-contract management grazing The Secretary may not make any cost sharing payment to an owner or operator under this subpart pursuant to section 3832(a)(5) of this title. (C) Seed cost In the case of seed costs related to the es- tablishment of cover, cost sharing payments under this subpart shall not exceed 50 per- cent of the actual cost of the seed mixture, as determined by the Secretary. (3) Other Federal cost share assistance Except in the case of incentive payments that are related to the cost of the establish- ment of a practice and received from eligible partners under the conservation reserve en- hancement program under section 3831a of this title, an owner or operator shall not be eligi- ble to receive or retain cost share assistance under this subsection if the owner or operator receives any other Federal cost share assist- ance with respect to the land under any other provision of law. (4) Practice incentives for continuous practices In addition to the cost sharing payment de- scribed in this subsection, the Secretary shall make an incentive payment to an owner or op- erator of land enrolled under section 3831(d)(6) of this title in an amount not to exceed 50 per- cent of the actual cost of establishing all measures and practices described in paragraph (1), including seed costs related to the estab- lishment of cover, as determined by the Sec- retary. (c) Forest management incentive payments (1) In general Using funds made available under section 3841(a)(1)(A) of this title, the Secretary may make incentive payments to an owner or oper- ator of eligible land in an amount sufficient to encourage proper thinning and other practices to improve the condition of resources, pro- mote forest management, or enhance wildlife habitat on the land. (2) Limitation A payment described in paragraph (1) may not exceed 100 percent of the total cost of thinning and other practices conducted by the owner or operator. (d) Annual rental payments (1) In general In determining the amount of annual rental payments to be paid to owners and operators for converting highly erodible cropland or other eligible lands normally devoted to the production of an agricultural commodity to less intensive use, the Secretary shall con- sider— (A) the amount necessary to encourage owners or operators of highly erodible crop- land or other eligible lands to participate in the program established by this subpart; (B) the impact on the local farmland rent- al market; and (C) such other factors as the Secretary de- termines to be appropriate. (2) Methods of determination (A) In general The amounts payable to owners or opera- tors in the form of rental payments under contracts entered into under this subpart may be determined through the submission of applications for such contracts by owners and operators in such manner as the Sec- retary may prescribe. (B) Multiple enrollments (i) In general Subject to clause (ii), if land subject to a contract entered into under this subpart is reenrolled under section 3831(h)(1) of this title or has been previously enrolled in the conservation reserve, the annual rental payment shall be in an amount that is not more than 85 percent in the case of general enrollment contacts, or 90 percent in the case of continuous enrollment contracts, of the applicable estimated average county rental rate published pursuant to para- graph (4) for the year in which the re- enrollment occurs. (ii) Conservation reserve enhancement pro- gram The reduction in annual rental payments under clause (i) may be waived as part of