16 U.S.C. § 3821 — Program ineligibility

Page 2349 TITLE 16—CONSERVATION § 3821 1 See Change of Name note below. AMENDMENTS 2014—Subsec. (d)(4). Pub. L. 113–79 added par. (4). § 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 sur- vey suitable for use in determining the land ca- pability class for purposes of this subchapter. In carrying out this section, the Secretary shall, insofar as possible, concentrate on those local- ities where significant amounts of highly erod- ible 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 com- pliance 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 respon- sible persons, not later than 45 days after ob- serving the possible violation, information re- garding actions needed to comply with the plan and this subchapter. The employee shall provide the information in lieu of reporting the observa- tion as a compliance violation. (b) Corrective action The responsible persons shall attempt to cor- rect the deficiencies as soon as practicable after receiving the information. (c) Review If the corrective action is not fully imple- mented not later than 1 year after the respon- sible persons receive the information, the Sec- retary 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.) SUBCHAPTER III—WETLAND CONSERVATION § 3821. Program ineligibility (a) Production on converted wetland Except as provided in this subchapter and not- withstanding any other provision of law, any person who in any crop year produces an agri- cultural commodity on converted wetland, as determined by the Secretary, shall be— (1) in violation of this section; and (2) ineligible for loans or payments in an amount determined by the Secretary to be proportionate to the severity of the violation. (b) Ineligibility for certain loans and payments If a person is determined to have committed a violation under subsection (a) during a crop year, the Secretary shall determine which of, and the amount of, the following loans and pay- ments for which the person shall be ineligible: (1) Contract payments under a production flexibility contract, marketing assistance loans, and any type of price support or pay- ment 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. (2) A loan made or guaranteed under the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) or any other provi- sion of law administered by the Consolidated Farm Service Agency,1 if the Secretary deter- mines that the proceeds of the loan will be used for a purpose that will contribute to con- version of a wetland (other than as provided in this subchapter) to produce an agricultural commodity. (3) During the crop year: (A) A payment made pursuant to a con- tract 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. (D) A payment, loan, or other assistance under section 1003 or 1006a of this title. (c) Ineligibility for crop insurance premium as- sistance (1) Requirements (A) In general If a person is determined to have com- mitted a violation under subsection (a) or (d) during a crop year, the person shall be ineli- gible to receive any payment of any portion of premium paid by the Federal Crop Insur- ance Corporation for a plan or policy of in- surance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.) pursuant to this subsection. (B) Applicability Ineligibility under this subsection shall— (i) only apply to reinsurance years subse- quent 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. (2) Conversions (A) In general Notwithstanding paragraph (1), ineligi- bility for crop insurance premium assistance shall apply in accordance with this para- graph. (B) New conversions In the case of a wetland that the Secretary determines was converted after February 7, 2014— (i) the person shall be ineligible to re- ceive crop insurance premium subsidies in subsequent reinsurance years unless the Secretary determines that an exemption pursuant to section 3822 of this title ap- plies; or Page 2350 TITLE 16—CONSERVATION § 3821 (ii) for any violation that the Secretary determines impacts less than 5 acres of an entire farm, the person may pay a con- tribution in an amount equal to 150 per- cent of the cost of mitigation, as deter- mined by the Secretary, to the fund de- scribed in section 3841(f) of this title for wetland restoration in lieu of ineligibility to receive crop insurance premium assist- ance. (C) Prior conversions In the case of a wetland that the Secretary determines was converted prior to February 7, 2014, ineligibility under this subsection shall not apply. (D) Conversions and new policies or plans of insurance In the case of an agricultural commodity for which an individual policy or plan of in- surance is available for the first time to the person after February 7, 2014— (i) ineligibility shall apply only to con- versions that take place after the date on which the policy or plan of insurance first becomes available to the person; and (ii) the person shall take such steps as the Secretary determines appropriate to mitigate any prior conversion in a timely manner but not to exceed 2 reinsurance years. (3) Limitations (A) Mitigation required Except as otherwise provided in this para- graph, a person subject to a final determina- tion, including all administrative appeals, of a violation described in subsection (d) shall have 1 reinsurance year to initiate a mitiga- tion plan to remedy the violation, as deter- mined by the Secretary, before becoming in- eligible under this subsection in the fol- lowing reinsurance year to receive any pay- ment of any portion of the premium paid by the Federal Crop Insurance Corporation for a policy or plan of insurance under the Fed- eral Crop Insurance Act (7 U.S.C. 1501 et seq.). (B) Persons covered for the first time Notwithstanding the requirements of para- graph (1), in the case of a person that is sub- ject to this subsection for the first time solely due to the amendment made by sec- tion 2611(b) of the Agricultural Act of 2014, the person shall have 2 reinsurance years after the reinsurance year in which a final determination is made, including all admin- istrative appeals, of a violation described in this subsection to take such steps as the Secretary determines appropriate to remedy or mitigate the violation in accordance with this subsection. (C) Good faith If the Secretary determines that a person subject to a final determination, including all administrative appeals, of a violation de- scribed in this subsection acted in good faith and without intent to commit a violation described in this subsection as described in section 3822(h) of this title, the person shall have 2 reinsurance years to take such steps as the Secretary determines appropriate to remedy or mitigate the violation in accord- ance with this subsection. (D) Tenant relief (i) In general If a tenant is determined to be ineligible for payments and other benefits under this subsection, the Secretary may limit the ineligibility only to the farm that is the basis for the ineligibility determination if the tenant has established, to the satisfac- tion of the Secretary that— (I) the tenant has made a good faith ef- fort to meet the requirements of this section, including enlisting the assist- ance of the Secretary to obtain a reason- able plan for restoration or mitigation for the farm; (II) the landlord on the farm refuses to comply with the plan on the farm; and (III) the Secretary determines that the lack of compliance is not a part of a scheme or device to avoid the compli- ance. (ii) Report The Secretary shall submit to the Com- mittee on Agriculture of the House of Rep- resentatives and the Committee on Agri- culture, Nutrition, and Forestry of the Senate an annual report concerning the in- eligibility determinations limited during the previous 12-month period under this subparagraph. (E) Certificate of compliance (i) In general Beginning with the first full reinsurance year immediately following February 7, 2014, all persons seeking eligibility for the payment of a 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.) shall provide certification of com- pliance with this section as determined by the Secretary. (ii) Timely evaluation The Secretary shall evaluate the certifi- cation in a timely manner and— (I) a person who has properly complied with certification shall be held harmless with regard to eligibility during the pe- riod of evaluation; and (II) if the Secretary fails to evaluate the certification in a timely manner and the person is subsequently found to be in violation of this subsection, ineligibility shall not apply to the person for that violation. (iii) Equitable contribution (I) In general If a person fails to notify the Secretary as required and is subsequently found to be in violation of this subsection, the Secretary shall— (aa) determine the amount of an eq- uitable contribution to conservation by the person for the violation; and Page 2351 TITLE 16—CONSERVATION § 3821 (bb) deposit the contribution in the fund described in section 3841(f) of this title. (II) Limitation The contribution shall not exceed the total of the portion of the premium paid by the Federal Crop Insurance Corpora- tion for a policy or plan of insurance for all years the person is determined to have been in violation subsequent to the date on which certification was first re- quired under this subparagraph. (4) Duties of the Secretary (A) In general In carrying out this subsection, the Sec- retary shall use existing processes and pro- cedures for certifying compliance. (B) Responsibility The Secretary, acting through the agen- cies of the Department of Agriculture, shall be solely responsible for determining wheth- er a producer is eligible to receive crop in- surance premium subsidies in accordance with this subsection. (C) Limitation The Secretary shall ensure that no agent, approved insurance provider, or employee or contractor of an agency or approved insur- ance provider, bears responsibility or liabil- ity for the eligibility of an insured producer under this subsection, other than in cases of misrepresentation, fraud, or scheme and de- vice. (d) Wetland conversion (1) In general Except as provided in section 3822 of this title and notwithstanding any other provision of law, any person who in any crop year begin- ning after November 28, 1990, converts a wet- land by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making the production of an ag- ricultural commodity possible on such con- verted wetland shall be ineligible for those payments, loans, or programs specified in sub- section (b) for that crop year and all subse- quent crop years. (2) Duty of the Secretary No person shall become ineligible under paragraph (1) if the Secretary determines that an exemption under section 3822(b) of this title applies to that person. (e) Prior loans This section shall not apply to a loan de- scribed in subsection (b) made before December 23, 1985. (f) Wetland The Secretary shall have, and shall not dele- gate to any private person or entity, authority to determine whether a person has complied with this subchapter. (Pub. L. 99–198, title XII, § 1221, Dec. 23, 1985, 99 Stat. 1507; Pub. L. 101–624, title XIV, § 1421(b), Nov. 28, 1990, 104 Stat. 3572; Pub. L. 102–237, title II, § 204(3), Dec. 13, 1991, 105 Stat. 1855; Pub. L. 102–552, title III, § 308(a), Oct. 28, 1992, 106 Stat. 4116; Pub. L. 104–127, title III, § 321, Apr. 4, 1996, 110 Stat. 986; Pub. L. 107–171, title II, § 2002(b), May 13, 2002, 116 Stat. 233; Pub. L. 113–79, title II, § 2611(b), Feb. 7, 2014, 128 Stat. 763; Pub. L. 115–334, title II, §§ 2101, 2301(d)(1)(B), Dec. 20, 2018, 132 Stat. 4530, 4553.) Editorial Notes REFERENCES IN TEXT The Agricultural Market Transition Act, referred to in subsec. (b)(1), is title I of Pub. L. 104–127, Apr. 4, 1996, 110 Stat. 896, which is classified principally to chapter 100 (§ 7201 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 7201 of Title 7 and Tables. The Commodity Credit Corporation Charter Act, re- ferred to in subsec. (b)(1), is act June 29, 1948, ch. 704, 62 Stat. 1070, which is classified generally to subchapter II (§ 714 et seq.) of chapter 15 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 714 of Title 15 and Tables. The Consolidated Farm and Rural Development Act, referred to in subsec. (b)(2), is title III of Pub. L. 87–128, Aug. 8, 1961, 75 Stat. 307, which is classified principally to chapter 50 (§ 1921 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under section 1921 of Title 7 and Tables. The Federal Crop Insurance Act, referred to in sub- sec. (c)(1)(A), (3)(A), (E)(i), is subtitle A of title V of act Feb. 16, 1938, ch. 30, 52 Stat. 72, which is classified gen- erally to subchapter I (§ 1501 et seq.) of chapter 36 of Title 7, Agriculture. For complete classification of this Act to the Code, see section 1501 of Title 7 and Tables. Section 2611(b) of the Agricultural Act of 2014, re- ferred to in subsec. (c)(3)(B), is section 2611(b) of Pub. L. 113–79, Feb. 7, 2014, 128 Stat. 763, which amended this section. AMENDMENTS 2018—Subsec. (b)(3)(A). Pub. L. 115–334, § 2301(d)(1)(B), inserted ‘‘subpart A of’’ before ‘‘part IV’’. Subsec. (d). Pub. L. 115–334, § 2101, designated existing provisions as par. (1), inserted heading, and added par. (2). 2014—Subsecs. (c) to (f). Pub. L. 113–79 added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively. 2002—Subsec. (e). Pub. L. 107–171 added subsec. (e). 1996—Pub. L. 104–127, § 321(a)(2), reenacted section catchline without change. Subsec. (a). Pub. L. 104–127, § 321(a)(2), added subsec. (a) and struck out former subsec. (a) which related to ineligibility of persons producing an agricultural com- modity on converted wetland to receive certain Federal payments, loans, insurance benefits, and other benefits. Subsec. (b). Pub. L. 104–127, § 321(a)(2), added subsec. (b). Former subsec. (b) redesignated (c). Subsec. (c). Pub. L. 104–127, § 321(b)(1), inserted head- ing and substituted ‘‘beginning after November 28, 1990,’’ for ‘‘subsequent to November 28, 1990,’’ and ‘‘sub- section (b)’’ for ‘‘subsections (a)(1) through (3)’’. Pub. L. 104–127, § 321(a)(1), redesignated subsec. (b) as (c). Subsec. (d). Pub. L. 104–127, § 321(b)(2), added subsec. (d). 1992—Subsec. (a)(1)(D). Pub. L. 102–552 made technical correction to directory language of Pub. L. 102–237. See 1991 Amendment note below. 1991—Subsec. (a)(1)(D). Pub. L. 102–237, as amended by Pub. L. 102–552, substituted ‘‘(7 U.S.C. 1421 note)’’ for ‘‘(16 U.S.C. 1421 note)’’. 1990—Subsec. (a). Pub. L. 101–624, § 1421(b)(1), des- ignated existing provisions as subsec. (a). Subsec. (a)(1)(D). Pub. L. 101–624, § 1421(b)(2), inserted reference to section 132 of the Disaster Assistance Act Page 2352 TITLE 16—CONSERVATION § 3822 of 1989 and similar provisions enacted after Aug. 14, 1989. Subsec. (a)(3). Pub. L. 101–624, § 1421(b)(3)–(5), added par. (3). Subsec. (b). Pub. L. 101–624, § 1421(b)(6), added subsec. (b). Statutory Notes and Related Subsidiaries CHANGE OF NAME Consolidated Farm Service Agency effectively re- named Farm Service Agency by the amendments made to section 6932 of Title 7, Agriculture, by Pub. L. 115–334, title XII, § 12404(a), Dec. 20, 2018, 132 Stat. 4974. EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–127, title III, § 326, Apr. 4, 1996, 110 Stat. 992, provided that: ‘‘This subtitle [subtitle C (§§ 321–326) of title III of Pub. L. 104–127, enacting section 3823 of this title, amending this section and section 3822 of this title, and repealing former section 3823 of this title] and the amendments made by this subtitle shall become ef- fective 90 days after the date of enactment of this Act [Apr. 4, 1996].’’ SHORT TITLE Pub. L. 99–198, title XII, subtitle C, Dec. 23, 1985, 99 Stat. 1507, which is classified generally to this sub- chapter, is popularly known as the swampbuster provi- sions. § 3822. Delineation of wetlands; exemptions (a) Delineation by Secretary (1) In general Subject to subsection (b) and paragraph (6), the Secretary shall delineate, determine, and certify all wetlands located on subject land on a farm. (2) Wetland delineation maps The Secretary shall delineate wetlands on wetland delineation maps. On the request of a person, the Secretary shall make a reasonable effort to make an on-site wetland determina- tion prior to delineation. (3) Certification On providing notice to affected persons, the Secretary shall— (A) certify whether a map is sufficient for the purpose of making a determination of in- eligibility for program benefits under sec- tion 3821 of this title; and (B) provide an opportunity to appeal the certification prior to the certification be- coming final. (4) Duration of certification A final certification made under paragraph (3) shall remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certifi- cation by the Secretary. (5) Review of mapping on appeal In the case of an appeal of the Secretary’s certification, the Secretary shall review and certify the accuracy of the mapping of all land subject to the appeal to ensure that the sub- ject land has been accurately delineated. Prior to rendering a decision on the appeal, the Sec- retary shall conduct an on-site inspection of the subject land on a farm. (6) Reliance on prior certified delineation No person shall be adversely affected be- cause of having taken an action based on a previous certified wetland delineation by the Secretary. The delineation shall not be subject to a subsequent wetland certification or delin- eation by the Secretary, unless requested by the person under paragraph (4). (b) Exemptions No person shall become ineligible under sec- tion 3821 of this title for program loans or pay- ments under the following circumstances: (1) As the result of the production of an agri- cultural commodity on the following lands: (A) A converted wetland if the conversion of the wetland was commenced before De- cember 23, 1985. (B) Land that is a nontidal drainage or ir- rigation ditch excavated in upland. (C) A wet area created by a water delivery system, irrigation, irrigation system, or ap- plication of water for irrigation. (D) A wetland on which the owner or oper- ator of a farm or ranch uses normal cropping or ranching practices to produce an agricul- tural commodity in a manner that is con- sistent for the area where the production is possible as a result of a natural condition, such as drought, and is without action by the producer that destroys a natural wetland characteristic. (E) Land that is an artificial lake or pond created by excavating or diking land (that is not a wetland) to collect and retain water and that is used primarily for livestock wa- tering, fish production, irrigation, wildlife, fire control, flood control, cranberry grow- ing, or rice production, or as a settling pond. (F) A wetland that is temporarily or inci- dentally created as a result of adjacent de- velopment activity. (G) A converted wetland if the original conversion of the wetland was commenced before December 23, 1985, and the Secretary determines the wetland characteristics re- turned after that date as a result of— (i) the lack of maintenance of drainage, dikes, levees, or similar structures; (ii) a lack of management of the lands containing the wetland; or (iii) circumstances beyond the control of the person. (H) A converted wetland, if— (i) the converted wetland was deter- mined by the Natural Resources Conserva- tion Service to have been manipulated for the production of an agricultural com- modity or forage prior to December 23, 1985, and was returned to wetland condi- tions through a voluntary restoration, en- hancement, or creation action subsequent to that determination; (ii) technical determinations regarding the prior site conditions and the restora- tion, enhancement, or creation action have been adequately documented by the Natural Resources Conservation Service; (iii) the proposed conversion action is approved by the Natural Resources Con- servation Service prior to implementation; and