Technical Service Provider Assistance, 2800-2806 [E9-828]
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(b) Participants may use technical
services from qualified personnel of
other Federal, State, and local agencies,
Indian tribes, or individuals who are
certified as TSPs by NRCS.
(c) Technical services provided by
qualified personnel not affiliated with
USDA may include, but is not limited
to: Conservation planning; conservation
practice survey, layout, design,
installation, and certification; and
information; education; and training for
producers.
(d) NRCS retains approval authority
over certification of work done by nonNRCS personnel for the purpose of
approving WHIP payments.
§ 636.19
Access to operating unit.
As a condition of program
participation, any authorized NRCS
representative shall have the right to
enter an agricultural operation or tract
for the purposes of determining
eligibility and for ascertaining the
accuracy of any representations related
to cost-share agreements, and
performance. Access shall include the
right to provide technical assistance;
determine eligibility; inspect any work
undertaken under the cost-share
agreements, including the WPO and
O&M agreement; and collect
information necessary to evaluate the
conservation practice performance
specified in the cost-share agreements.
The NRCS representative shall make a
reasonable effort to contact the
participant prior to the exercising of this
provision.
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§ 636.20
Equitable relief.
(a) If a participant relied upon the
advice or action of any authorized NRCS
representative and did not know, or
have reason to know, that the advice or
action was improper or erroneous,
NRCS may accept the advice or action
as meeting program requirements and
grant relief because of the good-faith
reliance on the part of the participant.
The financial or technical liability for
any action by a participant that was
taken based on the advice of a NRCS
certified non-USDA TSP is the
responsibility of the certified TSP and
will not be assumed by NRCS when
NRCS authorizes payment. Where a
participant believes that detrimental
reliance on the advice or action of a
NRCS representative resulted in an
ineligibility or program violation, the
participant may request equitable relief
under 7 CFR 635.3.
(b) If, during the term of a WHIP costshare agreement, a participant has been
found in violation of a provision of the
cost-share agreement, the O&M
agreement, or any document
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incorporated by reference through
failure to fully comply with that
provision, the participant may be
eligible for equitable relief under 7 CFR
635.4.
§ 636.21 Environmental services credits
for conservation improvements.
USDA recognizes that environmental
benefits will be achieved by
implementing conservation practices
funded through WHIP, and that
environmental credits may be gained as
a result of implementing activities
compatible with the purposes of a WHIP
cost-share agreement. NRCS asserts no
direct or indirect interest on any such
credits. However, NRCS retains the
authority to ensure that the
requirements for WHIP funded
improvements are met and maintained
consistent with §§ 636.8 and 636.9.
Where activities required under an
environmental credit agreement may
affect land covered under a WHIP costshare agreement, participants are highly
encouraged to request a compatibility
assessment from NRCS prior to entering
into such agreements.
Signed in Washington, DC, on January 9,
2009.
Arlen Lancaster,
Vice President, Commodity Credit
Corporation and Chief, Natural Resources
Conservation Service.
[FR Doc. E9–827 Filed 1–15–09; 8:45 am]
BILLING CODE 3410–16–P
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation
Service
7 CFR Part 652
RIN 0578–AA48
Technical Service Provider Assistance
AGENCY: Natural Resources
Conservation Service, United States
Department of Agriculture.
ACTION: Interim final rule with request
for comment.
SUMMARY: The Natural Resources
Conservation Service (NRCS), an agency
of the U.S. Department of Agriculture
(USDA) is issuing an interim final rule
for technical service provider (TSP)
assistance as authorized under the Food
Security Act of 1985, as amended by the
Food, Conservation, and Energy Act of
2008. This interim final rule amends the
Technical Service Provider (TSP)
regulations to address changes made by
the Food, Conservation, and Energy Act
of 2008. The Secretary of Agriculture
has delegated to NRCS the
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responsibility for administering the
authority for technical service provider
assistance.
DATES: Effective Date: This rule is
effective January 16, 2009.
Comment Date: Submit comments on
or before March 17, 2009.
ADDRESSES: You may send comments
(identified by Docket Number NRCS–
IFR–08011) using any of the following
methods:
• Government-wide rulemaking Web
site: Go to https://www.regulations.gov
and follow the instructions for sending
comments electronically.
• Mail: Technical Service Provider
Team, Natural Resources Conservation
Service, Technical Service Provider
Assistance Comments, P.O. 2890, Room
5234–S, Washington, DC 20013.
• Fax: 1–202–720–5334.
• Hand Delivery: Room 5234–S of the
USDA South Office Building, 1400
Independence Avenue, SW.,
Washington, DC 20250, between 9 a.m.
and 4 p.m., Monday through Friday,
except Federal holidays. Please ask the
guard at the entrance to the South Office
Building to call 202–720–4630 in order
to be escorted into the building.
• This interim final rule may be
accessed via Internet. Users can access
the NRCS homepage at https://
www.nrcs.usda.gov/; select the Farm
Bill link from the menu; select the
Interim final link from beneath the Final
and Interim Final Rules Index title.
Persons with disabilities who require
alternative means for communication
(Braille, large print, audio tape, etc.)
should contact the USDA TARGET
Center at: (202) 720–2600 (voice and
TDD).
FOR FURTHER INFORMATION CONTACT:
Team Leader, Technical Service
Provider Team, NRCS, P.O. Box 2890,
Washington, DC 20013–2890; phone:
(202) 720–6731; fax: (202) 720–5334; or
e-mail: TSP2008@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866,
this interim final rule with request for
comment has been determined to be a
significant regulatory action. The
administrative record is available for
public inspection in Room 5831 South
Building, USDA, 14th and
Independence Avenue, SW.,
Washington, DC. As required by
Executive Order 12866, NRCS
conducted an economic analysis of the
potential impacts associated with this
program. A summary of the economic
analysis can be found at the end of this
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preamble and a copy of the analysis is
available upon request from the Team
Leader, Technical Service Provider
Team, Natural Resources Conservation
Service, Room 5234–S, Washington, DC
20250–2890.
Regulatory Flexibility Act
NRCS has determined that the
Regulatory Flexibility Act is not
applicable to this interim final rule
because the NRCS is not required by 5
U.S.C. 553, or any other provision of
law, to publish a notice of proposed
rulemaking with respect to the subject
matter of this rule.
Environmental Analysis
The regulations promulgated by this
interim final rule establish a process of
using technical service providers to
provide technical assistance to
participants in NRCS conservation
programs. The regulations do not take or
authorize any actions that will have any
effect on the human environment.
Accordingly, a separate analysis for this
rulemaking under the National
Environmental Policy Act is not
required.
Civil Rights Impact Analysis
A Civil Rights Impact Analysis has
been completed regarding this interim
final rule. The review reveals no factors
indicating any disproportionate adverse
civil rights impacts for participants in
NRCS programs and services who are
minorities, women, or persons with
disabilities. A copy of this analysis is
available upon request from the Team
Leader, Technical Service Provider
Team, Natural Resources Conservation
Service, P.O. Box 2890, Washington, DC
20013–2890.
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Paperwork Reduction Act
Section 2904 of the 2008 Act provides
that the promulgation of regulations and
the administration of Title II of this Act
shall be made without regard to chapter
35 of Title 44 of the United States Code,
also known as the Paperwork Reduction
Act. Therefore, NRCS is not reporting
recordkeeping or estimated paperwork
burden associated with this interim
final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance
with the Government Paperwork
Elimination Act (GPEA) and the
Freedom to E-File Act, which require
Government agencies in general to
provide the public the option of
submitting information or transacting
business electronically to the maximum
extent possible. To better accommodate
public access, NRCS has developed an
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online application and information
system, TechReg, for use by the public
and technical service providers.
Executive Order 12988
This interim final rule has been
reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The
provisions of this interim final rule are
not retroactive. This interim final rule
preempts State and local laws to the
extent such laws are inconsistent with
this interim final rule. Before an action
may be brought in a Federal court of
competent jurisdiction, the
administrative appeal rights afforded
persons at 7 CFR part 614 must be
exhausted.
Federal Crop Insurance Reform and
Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the
Department of Agriculture
Reorganization Act of 1994, Public Law
104–354, USDA classified this interim
final rule as not major.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995, Public
Law 104–4, NRCS assessed the effects of
this rulemaking action on State, local,
and Tribal governments, and the public.
This action does not compel the
expenditure of $100 million or more by
any State, local, or Tribal governments,
or anyone in the private sector;
therefore, a statement under section 202
of the Unfunded Mandates Reform Act
of 1995 is not required.
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA)
Section 2904(c) of the Food,
Conservation, and Energy Act of 2008
requires that the Secretary use the
authority in section 808(2) of title 5,
United States Code, which allows an
agency to forgo SBREFA’s usual
Congressional Review delay of the
effective date of a regulation if the
agency finds that there is a good cause
to do so. NRCS hereby determines that
it has good cause to do so in order to
meet the Congressional intent to have
the conservation programs authorized or
amended by Title II in effect as soon as
possible. Accordingly, this rule is
effective upon filing for public
inspection by the Office of the Federal
Register.
Economic Analysis—Executive
Summary
Pursuant to Executive Order 12866,
Regulatory Planning and Review, the
Natural Resources Conservation Service
(NRCS) has conducted a benefit-cost
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analysis of the Technical Service
Provider Initiative (TSP) as formulated
for the interim final rule. This
requirement provides decision makers
with the opportunity to develop and
implement a program that is beneficial,
cost effective and that minimizes
negative impacts to health, human
safety, and the environment.
TSP provides another avenue for
eligible participants to obtain the
assistance they need to achieve the
conservation objectives on their land—
that is, through technical service
providers. Eligible participants may
choose to receive technical assistance
directly from NRCS, by selecting a
certified TSP from an approved list, or
through an agreement NRCS has entered
into with a TSP to provide the necessary
assistance. TSPs are certified
professionals, qualified to provide
NRCS program participants with the
technical services necessary to
implement their conservation projects.
Technical services include conservation
planning, technical consultations,
assistance with design and
implementation of conservation
practices, and related services.
The rule changes outlined in this
interim rule do not address whether
TSP could provide technical services at
low cost or extend service in areas
experiencing heavy workloads or in
instances where NRCS personnel lack
special skills or training in certain
professional areas. Rather, the rule
changes incorporate the changes made
by the 2008 Act. Serious and thorough
analysis of the actual cost and benefits
of extending NRCS services has been
addressed in its 2004 Cost Benefit
Assessment (Use of Technical Service
Providers to deliver technical assistance
to conservation programs in the United
States). This analysis found that TSP
provides positive net benefits given
potential future increased workloads on
NRCS with little growth in the NRCS
workforce. TSPs could enable NRCS
program participants to begin their
projects sooner than would otherwise be
the case. This effect could increase
environmental benefits for programs
utilizing TSPs. In addition, the use of
TSPs could potentially increase the
amount of contracts that actually are
completed rather than cancelled
because of time delays. Neither the 2004
nor the 2008 TSP Cost Benefit Analysis
provides a cost comparison of TSPs
costs with internal NRCS costs.
The current analysis does not address
any of the core principles associated
with TSP, but addressed several
discretionary policy items which were
qualitatively assessed. None of these
policy items were expected to produce
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significant adverse effects to
implementation of conservation
practices and the overall operation of
NRCS.
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Discussion of Program
Background
NRCS is issuing an interim final rule
for the implementation of TSP
assistance, as authorized by section
1242 of the Food Security Act of 1985,
as amended. In this preamble, NRCS
provides background information about
the TSP assistance provisions, the
amendments made by the Food,
Conservation, and Energy Act of 2008
(2008 Act), Public Law 110–246, 122
Stat. 1651, and the changes made to the
TSP regulations to implement those
statutory changes.
NRCS utilizes its technical expertise
to provide information to eligible
participants (producers, land owners, or
entities) who apply to or are eligible to
participate in conservation programs to
help them make land management
decisions and to implement
conservation practices and systems.
Through its conservation planning
process, NRCS helps the participant
develop a conservation plan and,
subject to the availability of funds, the
Department provides financial
assistance to the eligible participant to
implement conservation practices or
systems.
The Farm Security and Rural
Investment Act of 2002 (2002 Act),
Public Law 107–171, expanded the
authority for providing technical
assistance for the implementation of
conservation programs. Specifically, the
2002 Act amended section 1242 of the
Food Security Act of 1985 to require
USDA to provide technical assistance
under the Food Security Act
conservation programs to a producer
eligible for that assistance ‘‘directly
* * * or at the option of the producer,
through a payment * * * to the
producer for an approved third party, if
available.’’ The Secretary of Agriculture
delegated authority to implement
section 1242 to NRCS.
NRCS published an interim final rule
on November 21, 2002 (67 FR 70119) to
enact the technical service provider
assistance provisions of the 2002 Act.
Through the interim final rule, NRCS:
(1) Established a certification process
under which NRCS would evaluate and
approve individuals, entities, and
public agencies as eligible to provide
conservation technical assistance for
certain conservation programs; (2)
established criteria by which NRCS
would evaluate all potential providers
of technical assistance; (3) set forth
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conditions and procedures by which
NRCS would determine if a TSP has
failed to provide adequate technical
services and should not remain certified
as a provider; and (4) requested
comments on proposed methods for
determining payment rates for
reimbursing participants for technical
services obtained from TSPs. On March
24, 2003, NRCS published an
amendment to the interim final rule (68
FR 14131), establishing the process for
determining payment levels. A second
amendment was published on July 9,
2003 (68 FR 40751) that established a
limited exception to certification and
payment requirements when USDA was
partnering with a State, local, or Tribal
government to carry out its duty to
provide technical services. On
November 29, 2004, NRCS published
the final rule (69 FR 69450) on technical
service provider assistance, limiting
certification requirements to technical
service providers hired directly by
program participants, specifying
qualification requirements for technical
service provider services acquired by
the Department, incorporating public
comment, and making organizational
improvements.
The 2008 Act
Section 2706 of the 2008 Act
amended section 1242 of the Food
Security Act of 1985 to ‘‘increase the
availability and range of technical
expertise available to eligible
participants to plan and implement
conservation measures.’’ Specifically,
section 2706 of the 2008 Act amends
section 1242 of the Food Security Act of
1985 to:
• Define eligible participants as
producers, landowners, and entities that
are eligible to participate in Title II
programs or under the Agricultural
Management Assistance (AMA) program
authorized by Section 524 of the Federal
Crop Insurance Act (7 U.S.C. 1524). The
inclusion of eligible participants under
AMA is an expansion of the TSP
applicability.
• Require the Secretary to provide
national criteria for the certification of
third party providers and to approve
any unique certification requirements
that are proposed by the Agency at the
State level.
• Provide specific authority for the
Secretary to provide technical assistance
for conservation programs authorized
under Title XII of the 1985 Act and the
Agricultural Management Assistance
program under section 524 of the
Federal Crop Insurance Act, 7 U.S.C.
1524, through an agreement with a third
party.
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• Establish that an agreement
between the Secretary and a third party
provider shall be for 1 year at a
minimum and not to exceed 3 years,
and provide for renewal of agreements.
• Require the Secretary to review the
certification requirements for third party
providers within one year of enactment
of the 2008 Act and make any
adjustments considered necessary by
the Secretary to improve participation.
• Prohibit activities or services that
are customarily provided at no cost by
a third party provider from being
eligible for TSP payment.
• Require the Secretary to establish
fair and reasonable payment rates for
technical services provided by third
party providers.
• Authorize as eligible for payment
technical services provided directly to
eligible participants (such as
conservation planning, education and
outreach, and assistance with design
and implementation of conservation
practices) or related technical services
that accelerate conservation program
delivery.
Overview of Technical Service Provider
Assistance
In 2003, NRCS launched its website
TechReg, an internet application,
through which individuals, businesses,
and public agencies may apply to
become certified TSPs. TechReg also
serves as a registry through which
program participants may obtain
certified TSPs. Additionally, payment
rates for particular technical service
activities are available on TechReg. As
of August 2008, nearly 1,700 entities
(individuals or businesses) were
certified in the TechReg registry. From
October 2003 through September 2008,
NRCS expended approximately $217
million for technical service provider
assistance.
Description of Changes to the
Regulation
Covered Programs
Section 2706 adds the Agricultural
Management Assistance (AMA)
Program, 7 U.S.C. 1524(b), to the list of
programs through which technical
service provider assistance may be
provided to eligible participants.
Consequently, this rulemaking adds
reference to AMA at § 652.1(a) and
§ 652.2. Since the TSP rule only
provides assistance for certain
conservation activities, eligible
activities under the AMA will be
limited to those related to conservation.
Technical Service Contracts.
Section 2706 adds section 1242(g)(2),
Technical Service Contracts, to the Food
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Security Act of 1985 (the 1985 Act).
This section provides that even in
situations in which financial assistance
is not provided under a Title XII
program or AMA, the Secretary may
enter into technical service contracts
with eligible participants for the
purpose of providing assistance in the
planning, design, or installation of an
eligible conservation practice.
The Managers’ Report to the 2008 Act
identifies increasing the availability of
technical assistance as a priority. This
authority to enter into technical service
contracts will assist landowners in
meeting the conservation needs on their
lands. The interim final rule establishes
that technical service contracts are
available only to eligible participants
who do not receive financial assistance
through programs included in Title XII
of the Food Security Act of 1985 and the
AMA. In addition, technical service
contracts will only be available for
technical assistance from TSPs for the
planning, design, or installation of
conservation practices. NRCS adds a
new § 652.5(e) to incorporate the
availability of technical service
contracts and redesignates the
subsequent paragraphs accordingly.
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NRCS Training of TSPs
The interim final rule clarifies the role
of NRCS in training and sets forth
conditions and procedures by which
NRCS may provide training to third
party providers to assist them in
meeting the certification requirements
in technical service categories that are
established by policy. NRCS adds
language to § 652.3(c)(4) that specifies
that NRCS may provide limited training
to ensure that persons meet the
certification criteria for certain technical
expertise when there is a lack of training
resources or market outside the agency
for such technical expertise. However,
training to be provided by NRCS will be
limited to training about NRCS
regulations, policies, procedures,
processes, and business and technical
tools unique to NRCS.
Related Technical Services
Section 2706 of the 2008 Act amends
the 1985 Act to add section 1242(f)(4),
Eligible Activities, which authorize
payment to TSPs for ‘‘related technical
assistance services that accelerate
conservation program delivery.’’ Related
services are in addition to technical
services provided directly to an eligible
participant and have the purpose of
accelerating conservation program
delivery. NRCS has identified ‘‘related
technical assistance services’’ in this
rulemaking to include conservation
planning documentation, payment
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scheduling and documentation, market
survey information related to the
establishment of easement
compensation rates, and similar
activities which result in more timely
implementation of conservation
programs. NRCS adds a new § 636.6(b)
to incorporate the ability to make
payment for related technical services,
and redesignates the subsequent
paragraphs accordingly.
TSP Payment Rates
Section 2706 of the 2008 Act added
section 1242(f)(5), Payment Amounts.
This section provides that the Secretary
shall establish fair and reasonable
amounts of payments for technical
services provided by third party
providers.
Currently, NRCS rates are based on
the cost to the agency to perform the
technical service and are established by
the NRCS National Office. The rates
include costs associated with planning,
design, installation, checkout of
conservation practices, and overhead
costs.
This rulemaking changes the existing
policy by establishing that the NRCS
State offices will determine fair and
reasonable payment rates for TSP
assistance using guidelines established
by the National Office and local NRCS
cost, market, and procurement data that
are available. NRCS will emphasize
using market rate data where available
to determine TSP payment rates. The
National Office will publish the State
payment rates for each practice on the
TechReg Web site. NRCS revises § 652.5
by removing reference to ‘‘not-toexceed’’ rates and specifying that NRCS
will use NRCS cost data, procurement
data, and market data to establish the
payment rates for TSP assistance.
NRCS will establish the following
process to ensure rates are fair and
reasonable:
1. At the National level, NRCS will
establish guidelines for State
Conservationists to develop the
payment rates to maintain consistency
and quality control. Common guidelines
will assist in ensuring consistency in
factors and processes among States,
while leaving flexibility for variation
among States.
2. The State Conservationists will
determine fair and reasonable rates for
the conservation practices in their
respective States. The State
Conservationists will establish
applicable TSP payment rates based on
local cost data, market data, and
procurement data as appropriate for the
practice.
3. The NRCS National Office will
review and approve State payment rates
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2803
to ensure regional consistency and
fairness, and provide a mechanism for
review and quality control for the
guidelines established in process Step 1.
The review and quality control
mechanism will include regular and
systematic State submittal of payment
data to the National office, contract
sampling, and a risk assessment of
complex, high-volume, and costintensive technical services.
NRCS considered establishing
national-level TSP payment rates using
NRCS cost data, procurement data, and
market data as determined by the NRCS
National Office. These rates could be
adjusted at the State level based on
geographical differences. This option
was rejected because it would create a
duplicative workload at the national
and state level by requiring national
reasonable TSP rates be developed for
all practices and plan types, while still
requiring the State level to evaluate
individually if the costs needed to be
adjusted at the State level. Additionally,
rates established at the national level
may not be perceived as reasonable by
third party providers in States.
NRCS also considered retaining the
current methodology where the National
Office uses agency cost data to calculate
TSP payment rates to participants for
eligible practices under conservation
programs. However, NRCS experience
administering TSP authority over the
past 5 years is that such rates based
solely upon NRCS costs do not
incorporate necessary profit margins to
make such rates approximate the rate
that the TSPs in the private sector
actually charge for their services. NRCS
believes utilizing procurement and
market data will provide this additional
cost consideration that will be
considered more fair and reasonable by
NRCS conservation program
participants, which may increase their
participation in the TSP program.
Therefore, NRCS is using this
rulemaking to change the rate setting
methodology from one based solely on
NRCS costs to provide such services to
one that also includes an emphasis on
local market rates.
Certification Requirements
Section 2706 of the 2008 Act made a
change to TSP certification requiring the
Secretary to provide national criteria for
the certification of third party providers
and to approve any unique certification
requirements that are proposed at the
State level. Currently, the TSP rule
provides national criteria including that
a TSP must meet State, Tribal, and
professional business licensing
requirements. No additional criteria will
be added at the national level. In
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addition, experience has shown that
unique state level requirements beyond
licensing and state law may be a
hindrance to effective implementation
of the TSP provision. Consequently,
NRCS is taking the opportunity to
clarify its policy that licensing and state
law requirements will be the only statelevel certification criteria allowed. No
change to the regulation is necessary
since state law and licensure
requirements are already addressed at
section 652.21(a)(2).
Section 2706 of the 2008 Act also
requires the Department to review TSP
certification requirements within one
year of enactment of the 2008 Act to
determine if adjustments are needed to
improve participation. In accordance
with the new statutory requirement,
NRCS will review the TSP certification
requirements based upon the criteria
that NRCS employees must meet to be
authorized to provide technical
assistance related to particular
conservation practices or activities.
Changes to the certification
requirements for each TSP category will
reflect any changes in the NRCS Field
Office Technical Guide, such as
conservation practices added or
discontinued. Additionally, any changes
made for a TSP requirement will be
reflected in the Field Office Technical
Guide, where applicable. The review
also will consider the needs of specialty
crop, organic farming, and precision
agriculture technologies with respect to
the completeness and appropriateness
of the conservation practice standards
and the associated TSP certification
requirements. These reviews, though
intended to improve participation
among TSPs, are administrative matters
that do not require changes to this
interim final rule.
Summary of Changes by Section
The TSP regulation at 7 CFR part 652
is divided into three subparts. Subpart
A sets forth the general provisions
related to the delivery of technical
services. Subpart B sets forth the
certification criteria and process NRCS
utilizes to evaluate a technical service
provider to determine whether such
provider is eligible to provide technical
assistance. Subpart C sets forth the
process and causes under which a
technical service provider may become
decertified and, therefore, ineligible to
provide technical services. All of the
changes to the TSP regulations through
this interim final rule are to provisions
in Subpart A.
Subpart A describes how program
participants choose technical service
providers, and how program
participants may receive payment from
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the Department for those services.
Subpart A also describes how the
Department will expand its delivery of
technical services to program
participants. The Department must
follow existing procurement and
financial assistance laws when it enters
into transactions to expand the
availability of technical services.
Section 652.1
Applicability
In § 652.1(a), NRCS adds the
conservation activities in the
Agricultural Management Assistance
Program to the programs covered by
technical service provider assistance
provisions. NRCS also incorporates in
this section the 2008 Act clarification
that there are three methods by which
NRCS may deliver technical services to
an eligible participant, including:
1. Directly;
2. Through an agreement between
NRCS and a third party provider, as
provided in § 652.6 of this part; or
3. Through a payment to an eligible
participant for an approved third-party
provider.
In § 652.1(b), NRCS adds the term
‘‘conservation planning’’ to reflect the
authority under the 2008 Act for NRCS
to enter into a technical service contract
with an eligible participant for the
development of a conservation plan.
NRCS revises the definition of
‘‘Technical service’’ to correspond to
language included in the definition of
‘‘Technical assistance’’ the 2008 Act,
which includes technical services and
technical infrastructure. Because the
scope of this regulation is constrained to
‘‘technical services’’ provided by
Technical Service Providers, only that
portion of the 2008 Act definition is
reflected in these regulations. The term
‘‘Indian lands’’ is added after ‘‘private
land’’ to clarify that technical service
providers may assist program
participants on Indian lands. This
change makes the regulation consistent
with land eligibility as established for
the programs for which technical
services are provided under this part.
Section 652.2
Definitions
NRCS replaces the term ‘‘participant’’
with the term ‘‘eligible participant’’ and
revises the definition to correspond to
the definition in the 2008 Act. NRCS
also includes reference to the
Agricultural Management Assistance
Program in the definitions for ‘‘program
contract’’ and ‘‘technical service
contract.’’ NRCS adds the definition of
‘‘Indian land’’ to clarify lands eligible to
receive technical service from technical
service providers as established under
§ 652.1(b).
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Section 652.3
Administration
NRCS re-designates § 636.3(c)(4) as
§ 636.3(c)(5) and adds a new
§ 636.3(c)(4) to incorporate the limited
circumstances under which NRCS will
provide training to potential technical
service providers. NRCS may provide
training to technical service providers
about its regulations, policies,
procedures, processes, and business and
technical tools that are unique to NRCS.
In this manner, NRCS intends to meet
its responsibility under the 2008 Act to
encourage the participation of qualified
individuals and entities in providing
technical services to NRCS program
participants.
Section 652.5 Eligible Participant
Acquisition of Technical Services
NRCS adds new language to this
section providing for technical service
contracts if an eligible participant
wishes to receive technical assistance
but is not receiving financial assistance
for implementation of the conservation
practices under one of the Title XII
conservation programs or AMA.
NRCS also incorporates changes
needed to implement the 2008 Act’s
requirement that NRCS establish fair
and reasonable payment rates. NRCS
will establish national guidelines for the
establishment of payment rates by NRCS
State offices. NRCS State
Conservationists will use these
guidelines and local cost, procurement,
and market data to determine payment
rates for each technical service activity
provided in their respective States. The
payment rates established at the State
level will be reviewed, approved, and
published at the national level through
the TechReg Web site.
Section 652.6 Department Delivery of
Technical Services
NRCS adds language to § 652.6 to
expand the ability to make payments
under TSP provisions for ‘‘related
technical assistance services.’’ Related
technical assistance services include
activities or services that accelerate
conservation program delivery,
including such activities as
development, processing, or
implementation of a program contract,
such as recording conservation planning
decisions and specifications.
NRCS incorporates language in this
section to clarify that NRCS may enter
into cooperative agreements or contracts
with another agency or with a nonFederal entity to provide technical
assistance to eligible program
participants, in accordance with
revisions made to section 1242(c)(2) of
the 1985 Act. While NRCS previously
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identified such cooperative agreements
and contracts in the TSP rule, the
parties with whom NRCS would enter
such agreements were not previously
identified specifically. NRCS also
incorporates the requirement that these
agreements are for a minimum of one
year, not to exceed three years in
duration, and are renewable.
List of Subjects in 7 CFR Part 652
Natural resources, Soil conservation,
Technical assistance, Water resources.
■ For the reasons stated in this
preamble, the Natural Resources
Conservation Service amends Part 652
of Title 7 of the Code of Federal
Regulations as follows:
PART 652—TECHNICAL SERVICE
PROVIDER ASSISTANCE
1. The authority citation for Part 652
continues to read as follows:
■
Authority: 16 U.S.C. 3842.
2. Section 652.1 is amended by
revising the second sentence of
paragraph (a) and revising paragraph (b),
to read as follows:
■
sroberts on PROD1PC70 with RULES
§ 652.1
Applicability.
(a) * * * The Food Security Act of
1985, as amended, requires the
Secretary to deliver technical assistance
to eligible participants for
implementation of its Title XII Programs
and the conservation activities in the
Agricultural Management Assistance
Program, 7 U.S.C. 1524, directly,
through an agreement with a third party
provider, or, at the option of the
producer, through payment to the
producer for an approved third party
provider. * * *
(b) Technical service providers may
provide technical services to eligible
participants in conservation planning
and in the planning, design, installation,
and check-out of conservation practices
applied on private land, Indian land, or
where allowed by conservation program
rules on public land where there is a
direct private land benefit.
*
*
*
*
*
■ 3. Section 652.2 is amended by
revising the definitions for ‘‘program
contract’’ and ‘‘technical service’’,
adding definitions for ‘‘eligible
participant’’, ‘‘Indian land’’ and
‘‘technical service contract’’, and
removing the definition for
‘‘participant’’.
The revisions and additions read as
follows:
§ 652.2
Definitions.
*
*
*
*
*
Eligible Participant means a producer,
landowner, or entity who is
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16:34 Jan 15, 2009
Jkt 217001
participating in, or seeking to
participate in, a conservation program
covered by this rule in which the
producer, landowner, or entity is
otherwise eligible to participate.
*
*
*
*
*
Indian land means all lands held in
trust by the United States for individual
Indians or Tribes, or all lands, titles to
which are held by individual Indians or
Tribes, subject to Federal restrictions
against alienation or encumbrance, or
all lands which are subject to the rights
of use, occupancy and/or benefit of
certain Tribes. The term Indian land
also includes land for which the title is
held in fee status by Indian tribes, and
the U.S. Government-owned land under
the Bureau of Indian Affairs
jurisdiction.
*
*
*
*
*
Program Contract means the
document that specifies the rights and
obligations of any individual or entity
that has been accepted for participation
in a program authorized under Title XII
of the Food Security Act of 1985, as
amended, or the Agricultural
Management Assistance Program,
authorized under 7 U.S.C. 1524.
*
*
*
*
*
Technical Service Contract means a
document that specifies the rights and
obligations of an eligible participant to
obtain technical services from a
technical service provider where the
eligible participant will not receive
financial assistance for the
implementation of the practice paid for
in the technical service contract through
participation in a Title XII conservation
program or the Agricultural
Management Assistance Program, 7
U.S.C. 1524.
Technical service means the
assistance provided by technical service
providers, including conservation
planning; conservation practice design,
layout, and installation; and
certification that the conservation
practice meets NRCS standards and
specifications.
*
*
*
*
*
■ 4. Section 652.3 is amended by
removing the word ‘‘and’’ from the end
of paragraph (c)(3), redesignating
paragraph (c)(4) as (c)(5), and adding a
new paragraph (c)(4) to read as follows:
§ 652.3
Administration.
*
*
*
*
*
(c) * * *
(4) Provide training to ensure that
persons meet the certification criteria
for certain technical expertise when
there is a lack of training resources or
market outside the agency for such
technical expertise. However, any
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2805
training provided by the Department
will be limited to training about
Department regulations, policies,
procedures, processes, and business and
technical tools unique to NRCS; and
*
*
*
*
*
■ 5. Section 652.5 is amended by
revising paragraph (e), redesignating
paragraph (j) as paragraph (k),
redesignating paragraphs (f) through (i)
as paragraphs (g) through (j), and adding
new paragraphs (f), (l), (m) to read as
follows:
§ 652.5 Eligible participant acquisition of
technical services.
*
*
*
*
*
(e) The technical assistance indicated
in paragraph (d) may include the
development of conservation plans or
activity plans suitable for subsequent
incorporation into a program contract.
(f) The Department may make
payment to eligible participants who
have a technical service contract and
utilize it for technical assistance from a
technical service provider.
*
*
*
*
*
(l) The Department shall not make
payment for activities or services that
are customarily provided at no cost by
a technical service provider to a
participant as determined by the State
Conservationist.
(m) Payment rates for technical
services acquired by participants.
(1) NRCS will calculate TSP payment
rates for technical services using
national, regional, and locally
determined price data.
(2) Establishing TSP payment rates.
(i) NRCS will establish guidelines to
analyze the local pricing information
using a standardized method.
(ii) The State Conservationist will
establish TSP payment rates in each
State for the various categories of
technical services. The State
Conservationist will determine the rates
according to local NRCS cost data,
procurement data, and market data.
(iii) NRCS at the National Office will
review and approve State payment rates
to ensure consistency where similar
resource conditions and agricultural
operations exist. Payment rates may
vary to some degree between or within
States due to differences in State laws,
the cost of doing business, competition,
and other variables.
(iv) NRCS at the State and National
levels will review payment rates
annually, or more frequently as needed,
and adjust the rates based upon data
from existing procurement contracts,
Federal cost rates, and other appropriate
sources.
(v) NRCS may adjust payment rates,
as needed, on a case-by-case basis, in
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response to unusual conditions or
unforeseen circumstances in delivering
technical services such as highly
complex technical situations,
emergency conditions, serious threats to
human health or the environment, or
major resource limitations. In these
cases, NRCS will set a case-specific TSP
payment rate based on the Department’s
determination of the scope, magnitude,
and timeliness of the technical services
needed.
6. Section 652.6 is amended by
redesignating paragraphs (b) through (e)
as paragraphs (d) through (g), adding
new paragraphs (b) and (c), and
amending redesignated paragraph (e) by
adding a second sentence to read as
follows:
■
§ 652.6 Department delivery of technical
services.
*
*
*
*
*
(b) The Department may also enter
into a procurement contract,
contribution agreement, cooperative
agreement, or other appropriate
instrument with technical service
providers to provide related technical
assistance services that accelerate
conservation program delivery. Related
technical assistance services may
include activities or services that
facilitate the development, processing,
or implementation of a program
contract, such as recording conservation
planning decisions and specifications.
(c) NRCS may enter into agreements
with other agencies or with a nonFederal entity to provide technical
services to eligible participants.
*
*
*
*
*
(e) * * * Any contract, contribution
agreement, cooperative agreement, or
other appropriate instrument entered
into under this section shall be for a
minimum of one year, shall not exceed
three years in duration, and may be
renewed upon mutual agreement of the
parties.
*
*
*
*
*
Signed this 9th day of January 2009, in
Washington, DC.
Arlen L. Lancaster,
Chief, Natural Resources Conservation
Service.
[FR Doc. E9–828 Filed 1–15–09; 8:45 am]
sroberts on PROD1PC70 with RULES
BILLING CODE 3410–16–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 944, 980, and 999
[Docket No. AMS–FV–07–0110; FV07–944/
980/999–1 FR]
Fruit, Vegetable, and Specialty Crops—
Import Regulations; Proposed
Revision to Reporting Requirements
AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Final rule.
SUMMARY: This rule revises the reporting
requirements for imports of
commodities regulated under section
608(e) (hereinafter referred to as ‘‘8e’’) of
the Agricultural Marketing Agreement
Act of 1937. These changes require that
the inspection certificates generated for
each lot of such commodities include
the entry number from the U.S. Customs
and Border Protection (CBP or Customs)
documentation that accompanies that
lot. The changes also require that
importers of raisins, dates, and dried
prunes report products exempt from 8e
import regulations on AMS Form FV–
6—‘‘Importers’ Exempt Commodity
Form,’’ which is the same form that is
currently used by importers of all other
commodities exempt from 8e import
regulations. These changes are intended
to streamline the tracking of imported
products and provide uniformity in
electronic reporting systems used by the
industries and the Department of
Agriculture (USDA).
DATES: Effective Date: February 17,
2009.
FOR FURTHER INFORMATION CONTACT: Rick
Lower or Jared Burnett, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue, SW., Stop 0237,
Washington, DC 20250–0237;
Telephone: (202) 720–2491, Fax: (202)
720–8938, or E-mail:
Richard.Lower@usda.gov or
JaredK.Burnett@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
This final
rule is issued under section 8e of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’
SUPPLEMENTARY INFORMATION:
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Section 8e provides that whenever
certain commodities are regulated under
Federal marketing orders, imports of
those commodities into the United
States are prohibited unless they meet
the same or comparable grade, size,
quality, or maturity requirements as
those in effect for the domestically
produced commodities. To ensure that
these requirements are met, the Act also
authorizes USDA to perform inspections
and issue inspection certificates for
such imported commodities.
Parts 944, 980, and 999 of title 7 of the
Code of Federal Regulations (CFR)
specify the information that should be
included on each inspection certificate
issued for regulated imports of fruits,
vegetables, and specialty crops,
respectively. Part 999 further specifies
which forms importers should use to
report to USDA and CBP imports of
raisins, dates, and dried prunes that
may be exempt from other 8e
requirements. Exempt commodities are
those which may be imported for
purposes such as processing, donation
to charitable organizations, or animal
feed.
USDA is issuing this rule in
conformance with Executive Order
12866.
There are no administrative
procedures which must be exhausted
prior to any judicial challenge to the
provisions of import regulations issued
under section 8e of the Act.
Customs Entry Number
Under the import regulations
contained in parts 944, 980, and 999,
inspection certificates issued for
imports of certain fruits, vegetables, and
specialty crops, respectively, must
include specific information about the
lot being inspected. In addition to
stating whether the lot meets the import
requirements, such information as the
date and place of inspection; the name
of the applicant; and the variety,
quantity, and identifying marks of the
lot inspected are required.
Previously, many inspectors have
noted the customs entry number
pertaining to the lot being inspected,
which is taken from the Customs
documentation accompanying that lot,
in the ‘‘Remarks’’ section or elsewhere
on the inspection certificate. The unique
entry number is generated for each lot
by CBP, and may be found on any one
of the various forms used to report
imported lots of fruit, vegetable, and
specialty crop commodities. USDA has
found that the entry number provides an
efficient way to identify individual lots
of commodities and to cross-reference
all the documents pertaining to each lot.
If, for instance, a certain lot fails to meet
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]]>Agencies
[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2800-2806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-828]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 652
RIN 0578-AA48
Technical Service Provider Assistance
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Interim final rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Natural Resources Conservation Service (NRCS), an agency
of the U.S. Department of Agriculture (USDA) is issuing an interim
final rule for technical service provider (TSP) assistance as
authorized under the Food Security Act of 1985, as amended by the Food,
Conservation, and Energy Act of 2008. This interim final rule amends
the Technical Service Provider (TSP) regulations to address changes
made by the Food, Conservation, and Energy Act of 2008. The Secretary
of Agriculture has delegated to NRCS the responsibility for
administering the authority for technical service provider assistance.
DATES: Effective Date: This rule is effective January 16, 2009.
Comment Date: Submit comments on or before March 17, 2009.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08011) using any of the following methods:
Government-wide rulemaking Web site: Go to https://www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: Technical Service Provider Team, Natural Resources
Conservation Service, Technical Service Provider Assistance Comments,
P.O. 2890, Room 5234-S, Washington, DC 20013.
Fax: 1-202-720-5334.
Hand Delivery: Room 5234-S of the USDA South Office
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between
9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Please ask the guard at the entrance to the South Office Building to
call 202-720-4630 in order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the NRCS homepage at https://www.nrcs.usda.gov/; select
the Farm Bill link from the menu; select the Interim final link from
beneath the Final and Interim Final Rules Index title. Persons with
disabilities who require alternative means for communication (Braille,
large print, audio tape, etc.) should contact the USDA TARGET Center
at: (202) 720-2600 (voice and TDD).
FOR FURTHER INFORMATION CONTACT: Team Leader, Technical Service
Provider Team, NRCS, P.O. Box 2890, Washington, DC 20013-2890; phone:
(202) 720-6731; fax: (202) 720-5334; or e-mail: TSP2008@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866, this interim final rule with
request for comment has been determined to be a significant regulatory
action. The administrative record is available for public inspection in
Room 5831 South Building, USDA, 14th and Independence Avenue, SW.,
Washington, DC. As required by Executive Order 12866, NRCS conducted an
economic analysis of the potential impacts associated with this
program. A summary of the economic analysis can be found at the end of
this
[[Page 2801]]
preamble and a copy of the analysis is available upon request from the
Team Leader, Technical Service Provider Team, Natural Resources
Conservation Service, Room 5234-S, Washington, DC 20250-2890.
Regulatory Flexibility Act
NRCS has determined that the Regulatory Flexibility Act is not
applicable to this interim final rule because the NRCS is not required
by 5 U.S.C. 553, or any other provision of law, to publish a notice of
proposed rulemaking with respect to the subject matter of this rule.
Environmental Analysis
The regulations promulgated by this interim final rule establish a
process of using technical service providers to provide technical
assistance to participants in NRCS conservation programs. The
regulations do not take or authorize any actions that will have any
effect on the human environment. Accordingly, a separate analysis for
this rulemaking under the National Environmental Policy Act is not
required.
Civil Rights Impact Analysis
A Civil Rights Impact Analysis has been completed regarding this
interim final rule. The review reveals no factors indicating any
disproportionate adverse civil rights impacts for participants in NRCS
programs and services who are minorities, women, or persons with
disabilities. A copy of this analysis is available upon request from
the Team Leader, Technical Service Provider Team, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890.
Paperwork Reduction Act
Section 2904 of the 2008 Act provides that the promulgation of
regulations and the administration of Title II of this Act shall be
made without regard to chapter 35 of Title 44 of the United States
Code, also known as the Paperwork Reduction Act. Therefore, NRCS is not
reporting recordkeeping or estimated paperwork burden associated with
this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general to provide the public the option of
submitting information or transacting business electronically to the
maximum extent possible. To better accommodate public access, NRCS has
developed an online application and information system, TechReg, for
use by the public and technical service providers.
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The provisions of this
interim final rule are not retroactive. This interim final rule
preempts State and local laws to the extent such laws are inconsistent
with this interim final rule. Before an action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR part 614 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Department of Agriculture
Reorganization Act of 1994, Public Law 104-354, USDA classified this
interim final rule as not major.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Public Law 104-4, NRCS assessed the effects of this rulemaking action
on State, local, and Tribal governments, and the public. This action
does not compel the expenditure of $100 million or more by any State,
local, or Tribal governments, or anyone in the private sector;
therefore, a statement under section 202 of the Unfunded Mandates
Reform Act of 1995 is not required.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
Section 2904(c) of the Food, Conservation, and Energy Act of 2008
requires that the Secretary use the authority in section 808(2) of
title 5, United States Code, which allows an agency to forgo SBREFA's
usual Congressional Review delay of the effective date of a regulation
if the agency finds that there is a good cause to do so. NRCS hereby
determines that it has good cause to do so in order to meet the
Congressional intent to have the conservation programs authorized or
amended by Title II in effect as soon as possible. Accordingly, this
rule is effective upon filing for public inspection by the Office of
the Federal Register.
Economic Analysis--Executive Summary
Pursuant to Executive Order 12866, Regulatory Planning and Review,
the Natural Resources Conservation Service (NRCS) has conducted a
benefit-cost analysis of the Technical Service Provider Initiative
(TSP) as formulated for the interim final rule. This requirement
provides decision makers with the opportunity to develop and implement
a program that is beneficial, cost effective and that minimizes
negative impacts to health, human safety, and the environment.
TSP provides another avenue for eligible participants to obtain the
assistance they need to achieve the conservation objectives on their
land--that is, through technical service providers. Eligible
participants may choose to receive technical assistance directly from
NRCS, by selecting a certified TSP from an approved list, or through an
agreement NRCS has entered into with a TSP to provide the necessary
assistance. TSPs are certified professionals, qualified to provide NRCS
program participants with the technical services necessary to implement
their conservation projects. Technical services include conservation
planning, technical consultations, assistance with design and
implementation of conservation practices, and related services.
The rule changes outlined in this interim rule do not address
whether TSP could provide technical services at low cost or extend
service in areas experiencing heavy workloads or in instances where
NRCS personnel lack special skills or training in certain professional
areas. Rather, the rule changes incorporate the changes made by the
2008 Act. Serious and thorough analysis of the actual cost and benefits
of extending NRCS services has been addressed in its 2004 Cost Benefit
Assessment (Use of Technical Service Providers to deliver technical
assistance to conservation programs in the United States). This
analysis found that TSP provides positive net benefits given potential
future increased workloads on NRCS with little growth in the NRCS
workforce. TSPs could enable NRCS program participants to begin their
projects sooner than would otherwise be the case. This effect could
increase environmental benefits for programs utilizing TSPs. In
addition, the use of TSPs could potentially increase the amount of
contracts that actually are completed rather than cancelled because of
time delays. Neither the 2004 nor the 2008 TSP Cost Benefit Analysis
provides a cost comparison of TSPs costs with internal NRCS costs.
The current analysis does not address any of the core principles
associated with TSP, but addressed several discretionary policy items
which were qualitatively assessed. None of these policy items were
expected to produce
[[Page 2802]]
significant adverse effects to implementation of conservation practices
and the overall operation of NRCS.
Discussion of Program
Background
NRCS is issuing an interim final rule for the implementation of TSP
assistance, as authorized by section 1242 of the Food Security Act of
1985, as amended. In this preamble, NRCS provides background
information about the TSP assistance provisions, the amendments made by
the Food, Conservation, and Energy Act of 2008 (2008 Act), Public Law
110-246, 122 Stat. 1651, and the changes made to the TSP regulations to
implement those statutory changes.
NRCS utilizes its technical expertise to provide information to
eligible participants (producers, land owners, or entities) who apply
to or are eligible to participate in conservation programs to help them
make land management decisions and to implement conservation practices
and systems. Through its conservation planning process, NRCS helps the
participant develop a conservation plan and, subject to the
availability of funds, the Department provides financial assistance to
the eligible participant to implement conservation practices or
systems.
The Farm Security and Rural Investment Act of 2002 (2002 Act),
Public Law 107-171, expanded the authority for providing technical
assistance for the implementation of conservation programs.
Specifically, the 2002 Act amended section 1242 of the Food Security
Act of 1985 to require USDA to provide technical assistance under the
Food Security Act conservation programs to a producer eligible for that
assistance ``directly * * * or at the option of the producer, through a
payment * * * to the producer for an approved third party, if
available.'' The Secretary of Agriculture delegated authority to
implement section 1242 to NRCS.
NRCS published an interim final rule on November 21, 2002 (67 FR
70119) to enact the technical service provider assistance provisions of
the 2002 Act. Through the interim final rule, NRCS: (1) Established a
certification process under which NRCS would evaluate and approve
individuals, entities, and public agencies as eligible to provide
conservation technical assistance for certain conservation programs;
(2) established criteria by which NRCS would evaluate all potential
providers of technical assistance; (3) set forth conditions and
procedures by which NRCS would determine if a TSP has failed to provide
adequate technical services and should not remain certified as a
provider; and (4) requested comments on proposed methods for
determining payment rates for reimbursing participants for technical
services obtained from TSPs. On March 24, 2003, NRCS published an
amendment to the interim final rule (68 FR 14131), establishing the
process for determining payment levels. A second amendment was
published on July 9, 2003 (68 FR 40751) that established a limited
exception to certification and payment requirements when USDA was
partnering with a State, local, or Tribal government to carry out its
duty to provide technical services. On November 29, 2004, NRCS
published the final rule (69 FR 69450) on technical service provider
assistance, limiting certification requirements to technical service
providers hired directly by program participants, specifying
qualification requirements for technical service provider services
acquired by the Department, incorporating public comment, and making
organizational improvements.
The 2008 Act
Section 2706 of the 2008 Act amended section 1242 of the Food
Security Act of 1985 to ``increase the availability and range of
technical expertise available to eligible participants to plan and
implement conservation measures.'' Specifically, section 2706 of the
2008 Act amends section 1242 of the Food Security Act of 1985 to:
Define eligible participants as producers, landowners, and
entities that are eligible to participate in Title II programs or under
the Agricultural Management Assistance (AMA) program authorized by
Section 524 of the Federal Crop Insurance Act (7 U.S.C. 1524). The
inclusion of eligible participants under AMA is an expansion of the TSP
applicability.
Require the Secretary to provide national criteria for the
certification of third party providers and to approve any unique
certification requirements that are proposed by the Agency at the State
level.
Provide specific authority for the Secretary to provide
technical assistance for conservation programs authorized under Title
XII of the 1985 Act and the Agricultural Management Assistance program
under section 524 of the Federal Crop Insurance Act, 7 U.S.C. 1524,
through an agreement with a third party.
Establish that an agreement between the Secretary and a
third party provider shall be for 1 year at a minimum and not to exceed
3 years, and provide for renewal of agreements.
Require the Secretary to review the certification
requirements for third party providers within one year of enactment of
the 2008 Act and make any adjustments considered necessary by the
Secretary to improve participation.
Prohibit activities or services that are customarily
provided at no cost by a third party provider from being eligible for
TSP payment.
Require the Secretary to establish fair and reasonable
payment rates for technical services provided by third party providers.
Authorize as eligible for payment technical services
provided directly to eligible participants (such as conservation
planning, education and outreach, and assistance with design and
implementation of conservation practices) or related technical services
that accelerate conservation program delivery.
Overview of Technical Service Provider Assistance
In 2003, NRCS launched its website TechReg, an internet
application, through which individuals, businesses, and public agencies
may apply to become certified TSPs. TechReg also serves as a registry
through which program participants may obtain certified TSPs.
Additionally, payment rates for particular technical service activities
are available on TechReg. As of August 2008, nearly 1,700 entities
(individuals or businesses) were certified in the TechReg registry.
From October 2003 through September 2008, NRCS expended approximately
$217 million for technical service provider assistance.
Description of Changes to the Regulation
Covered Programs
Section 2706 adds the Agricultural Management Assistance (AMA)
Program, 7 U.S.C. 1524(b), to the list of programs through which
technical service provider assistance may be provided to eligible
participants. Consequently, this rulemaking adds reference to AMA at
Sec. 652.1(a) and Sec. 652.2. Since the TSP rule only provides
assistance for certain conservation activities, eligible activities
under the AMA will be limited to those related to conservation.
Technical Service Contracts.
Section 2706 adds section 1242(g)(2), Technical Service Contracts,
to the Food
[[Page 2803]]
Security Act of 1985 (the 1985 Act). This section provides that even in
situations in which financial assistance is not provided under a Title
XII program or AMA, the Secretary may enter into technical service
contracts with eligible participants for the purpose of providing
assistance in the planning, design, or installation of an eligible
conservation practice.
The Managers' Report to the 2008 Act identifies increasing the
availability of technical assistance as a priority. This authority to
enter into technical service contracts will assist landowners in
meeting the conservation needs on their lands. The interim final rule
establishes that technical service contracts are available only to
eligible participants who do not receive financial assistance through
programs included in Title XII of the Food Security Act of 1985 and the
AMA. In addition, technical service contracts will only be available
for technical assistance from TSPs for the planning, design, or
installation of conservation practices. NRCS adds a new Sec. 652.5(e)
to incorporate the availability of technical service contracts and
redesignates the subsequent paragraphs accordingly.
NRCS Training of TSPs
The interim final rule clarifies the role of NRCS in training and
sets forth conditions and procedures by which NRCS may provide training
to third party providers to assist them in meeting the certification
requirements in technical service categories that are established by
policy. NRCS adds language to Sec. 652.3(c)(4) that specifies that
NRCS may provide limited training to ensure that persons meet the
certification criteria for certain technical expertise when there is a
lack of training resources or market outside the agency for such
technical expertise. However, training to be provided by NRCS will be
limited to training about NRCS regulations, policies, procedures,
processes, and business and technical tools unique to NRCS.
Related Technical Services
Section 2706 of the 2008 Act amends the 1985 Act to add section
1242(f)(4), Eligible Activities, which authorize payment to TSPs for
``related technical assistance services that accelerate conservation
program delivery.'' Related services are in addition to technical
services provided directly to an eligible participant and have the
purpose of accelerating conservation program delivery. NRCS has
identified ``related technical assistance services'' in this rulemaking
to include conservation planning documentation, payment scheduling and
documentation, market survey information related to the establishment
of easement compensation rates, and similar activities which result in
more timely implementation of conservation programs. NRCS adds a new
Sec. 636.6(b) to incorporate the ability to make payment for related
technical services, and redesignates the subsequent paragraphs
accordingly.
TSP Payment Rates
Section 2706 of the 2008 Act added section 1242(f)(5), Payment
Amounts. This section provides that the Secretary shall establish fair
and reasonable amounts of payments for technical services provided by
third party providers.
Currently, NRCS rates are based on the cost to the agency to
perform the technical service and are established by the NRCS National
Office. The rates include costs associated with planning, design,
installation, checkout of conservation practices, and overhead costs.
This rulemaking changes the existing policy by establishing that
the NRCS State offices will determine fair and reasonable payment rates
for TSP assistance using guidelines established by the National Office
and local NRCS cost, market, and procurement data that are available.
NRCS will emphasize using market rate data where available to determine
TSP payment rates. The National Office will publish the State payment
rates for each practice on the TechReg Web site. NRCS revises Sec.
652.5 by removing reference to ``not-to-exceed'' rates and specifying
that NRCS will use NRCS cost data, procurement data, and market data to
establish the payment rates for TSP assistance.
NRCS will establish the following process to ensure rates are fair
and reasonable:
1. At the National level, NRCS will establish guidelines for State
Conservationists to develop the payment rates to maintain consistency
and quality control. Common guidelines will assist in ensuring
consistency in factors and processes among States, while leaving
flexibility for variation among States.
2. The State Conservationists will determine fair and reasonable
rates for the conservation practices in their respective States. The
State Conservationists will establish applicable TSP payment rates
based on local cost data, market data, and procurement data as
appropriate for the practice.
3. The NRCS National Office will review and approve State payment
rates to ensure regional consistency and fairness, and provide a
mechanism for review and quality control for the guidelines established
in process Step 1. The review and quality control mechanism will
include regular and systematic State submittal of payment data to the
National office, contract sampling, and a risk assessment of complex,
high-volume, and cost-intensive technical services.
NRCS considered establishing national-level TSP payment rates using
NRCS cost data, procurement data, and market data as determined by the
NRCS National Office. These rates could be adjusted at the State level
based on geographical differences. This option was rejected because it
would create a duplicative workload at the national and state level by
requiring national reasonable TSP rates be developed for all practices
and plan types, while still requiring the State level to evaluate
individually if the costs needed to be adjusted at the State level.
Additionally, rates established at the national level may not be
perceived as reasonable by third party providers in States.
NRCS also considered retaining the current methodology where the
National Office uses agency cost data to calculate TSP payment rates to
participants for eligible practices under conservation programs.
However, NRCS experience administering TSP authority over the past 5
years is that such rates based solely upon NRCS costs do not
incorporate necessary profit margins to make such rates approximate the
rate that the TSPs in the private sector actually charge for their
services. NRCS believes utilizing procurement and market data will
provide this additional cost consideration that will be considered more
fair and reasonable by NRCS conservation program participants, which
may increase their participation in the TSP program. Therefore, NRCS is
using this rulemaking to change the rate setting methodology from one
based solely on NRCS costs to provide such services to one that also
includes an emphasis on local market rates.
Certification Requirements
Section 2706 of the 2008 Act made a change to TSP certification
requiring the Secretary to provide national criteria for the
certification of third party providers and to approve any unique
certification requirements that are proposed at the State level.
Currently, the TSP rule provides national criteria including that a TSP
must meet State, Tribal, and professional business licensing
requirements. No additional criteria will be added at the national
level. In
[[Page 2804]]
addition, experience has shown that unique state level requirements
beyond licensing and state law may be a hindrance to effective
implementation of the TSP provision. Consequently, NRCS is taking the
opportunity to clarify its policy that licensing and state law
requirements will be the only state-level certification criteria
allowed. No change to the regulation is necessary since state law and
licensure requirements are already addressed at section 652.21(a)(2).
Section 2706 of the 2008 Act also requires the Department to review
TSP certification requirements within one year of enactment of the 2008
Act to determine if adjustments are needed to improve participation. In
accordance with the new statutory requirement, NRCS will review the TSP
certification requirements based upon the criteria that NRCS employees
must meet to be authorized to provide technical assistance related to
particular conservation practices or activities. Changes to the
certification requirements for each TSP category will reflect any
changes in the NRCS Field Office Technical Guide, such as conservation
practices added or discontinued. Additionally, any changes made for a
TSP requirement will be reflected in the Field Office Technical Guide,
where applicable. The review also will consider the needs of specialty
crop, organic farming, and precision agriculture technologies with
respect to the completeness and appropriateness of the conservation
practice standards and the associated TSP certification requirements.
These reviews, though intended to improve participation among TSPs, are
administrative matters that do not require changes to this interim
final rule.
Summary of Changes by Section
The TSP regulation at 7 CFR part 652 is divided into three
subparts. Subpart A sets forth the general provisions related to the
delivery of technical services. Subpart B sets forth the certification
criteria and process NRCS utilizes to evaluate a technical service
provider to determine whether such provider is eligible to provide
technical assistance. Subpart C sets forth the process and causes under
which a technical service provider may become decertified and,
therefore, ineligible to provide technical services. All of the changes
to the TSP regulations through this interim final rule are to
provisions in Subpart A.
Subpart A describes how program participants choose technical
service providers, and how program participants may receive payment
from the Department for those services. Subpart A also describes how
the Department will expand its delivery of technical services to
program participants. The Department must follow existing procurement
and financial assistance laws when it enters into transactions to
expand the availability of technical services.
Section 652.1 Applicability
In Sec. 652.1(a), NRCS adds the conservation activities in the
Agricultural Management Assistance Program to the programs covered by
technical service provider assistance provisions. NRCS also
incorporates in this section the 2008 Act clarification that there are
three methods by which NRCS may deliver technical services to an
eligible participant, including:
1. Directly;
2. Through an agreement between NRCS and a third party provider, as
provided in Sec. 652.6 of this part; or
3. Through a payment to an eligible participant for an approved
third-party provider.
In Sec. 652.1(b), NRCS adds the term ``conservation planning'' to
reflect the authority under the 2008 Act for NRCS to enter into a
technical service contract with an eligible participant for the
development of a conservation plan. NRCS revises the definition of
``Technical service'' to correspond to language included in the
definition of ``Technical assistance'' the 2008 Act, which includes
technical services and technical infrastructure. Because the scope of
this regulation is constrained to ``technical services'' provided by
Technical Service Providers, only that portion of the 2008 Act
definition is reflected in these regulations. The term ``Indian lands''
is added after ``private land'' to clarify that technical service
providers may assist program participants on Indian lands. This change
makes the regulation consistent with land eligibility as established
for the programs for which technical services are provided under this
part.
Section 652.2 Definitions
NRCS replaces the term ``participant'' with the term ``eligible
participant'' and revises the definition to correspond to the
definition in the 2008 Act. NRCS also includes reference to the
Agricultural Management Assistance Program in the definitions for
``program contract'' and ``technical service contract.'' NRCS adds the
definition of ``Indian land'' to clarify lands eligible to receive
technical service from technical service providers as established under
Sec. 652.1(b).
Section 652.3 Administration
NRCS re-designates Sec. 636.3(c)(4) as Sec. 636.3(c)(5) and adds
a new Sec. 636.3(c)(4) to incorporate the limited circumstances under
which NRCS will provide training to potential technical service
providers. NRCS may provide training to technical service providers
about its regulations, policies, procedures, processes, and business
and technical tools that are unique to NRCS. In this manner, NRCS
intends to meet its responsibility under the 2008 Act to encourage the
participation of qualified individuals and entities in providing
technical services to NRCS program participants.
Section 652.5 Eligible Participant Acquisition of Technical Services
NRCS adds new language to this section providing for technical
service contracts if an eligible participant wishes to receive
technical assistance but is not receiving financial assistance for
implementation of the conservation practices under one of the Title XII
conservation programs or AMA.
NRCS also incorporates changes needed to implement the 2008 Act's
requirement that NRCS establish fair and reasonable payment rates. NRCS
will establish national guidelines for the establishment of payment
rates by NRCS State offices. NRCS State Conservationists will use these
guidelines and local cost, procurement, and market data to determine
payment rates for each technical service activity provided in their
respective States. The payment rates established at the State level
will be reviewed, approved, and published at the national level through
the TechReg Web site.
Section 652.6 Department Delivery of Technical Services
NRCS adds language to Sec. 652.6 to expand the ability to make
payments under TSP provisions for ``related technical assistance
services.'' Related technical assistance services include activities or
services that accelerate conservation program delivery, including such
activities as development, processing, or implementation of a program
contract, such as recording conservation planning decisions and
specifications.
NRCS incorporates language in this section to clarify that NRCS may
enter into cooperative agreements or contracts with another agency or
with a non-Federal entity to provide technical assistance to eligible
program participants, in accordance with revisions made to section
1242(c)(2) of the 1985 Act. While NRCS previously
[[Page 2805]]
identified such cooperative agreements and contracts in the TSP rule,
the parties with whom NRCS would enter such agreements were not
previously identified specifically. NRCS also incorporates the
requirement that these agreements are for a minimum of one year, not to
exceed three years in duration, and are renewable.
List of Subjects in 7 CFR Part 652
Natural resources, Soil conservation, Technical assistance, Water
resources.
0
For the reasons stated in this preamble, the Natural Resources
Conservation Service amends Part 652 of Title 7 of the Code of Federal
Regulations as follows:
PART 652--TECHNICAL SERVICE PROVIDER ASSISTANCE
0
1. The authority citation for Part 652 continues to read as follows:
Authority: 16 U.S.C. 3842.
0
2. Section 652.1 is amended by revising the second sentence of
paragraph (a) and revising paragraph (b), to read as follows:
Sec. 652.1 Applicability.
(a) * * * The Food Security Act of 1985, as amended, requires the
Secretary to deliver technical assistance to eligible participants for
implementation of its Title XII Programs and the conservation
activities in the Agricultural Management Assistance Program, 7 U.S.C.
1524, directly, through an agreement with a third party provider, or,
at the option of the producer, through payment to the producer for an
approved third party provider. * * *
(b) Technical service providers may provide technical services to
eligible participants in conservation planning and in the planning,
design, installation, and check-out of conservation practices applied
on private land, Indian land, or where allowed by conservation program
rules on public land where there is a direct private land benefit.
* * * * *
0
3. Section 652.2 is amended by revising the definitions for ``program
contract'' and ``technical service'', adding definitions for ``eligible
participant'', ``Indian land'' and ``technical service contract'', and
removing the definition for ``participant''.
The revisions and additions read as follows:
Sec. 652.2 Definitions.
* * * * *
Eligible Participant means a producer, landowner, or entity who is
participating in, or seeking to participate in, a conservation program
covered by this rule in which the producer, landowner, or entity is
otherwise eligible to participate.
* * * * *
Indian land means all lands held in trust by the United States for
individual Indians or Tribes, or all lands, titles to which are held by
individual Indians or Tribes, subject to Federal restrictions against
alienation or encumbrance, or all lands which are subject to the rights
of use, occupancy and/or benefit of certain Tribes. The term Indian
land also includes land for which the title is held in fee status by
Indian tribes, and the U.S. Government-owned land under the Bureau of
Indian Affairs jurisdiction.
* * * * *
Program Contract means the document that specifies the rights and
obligations of any individual or entity that has been accepted for
participation in a program authorized under Title XII of the Food
Security Act of 1985, as amended, or the Agricultural Management
Assistance Program, authorized under 7 U.S.C. 1524.
* * * * *
Technical Service Contract means a document that specifies the
rights and obligations of an eligible participant to obtain technical
services from a technical service provider where the eligible
participant will not receive financial assistance for the
implementation of the practice paid for in the technical service
contract through participation in a Title XII conservation program or
the Agricultural Management Assistance Program, 7 U.S.C. 1524.
Technical service means the assistance provided by technical
service providers, including conservation planning; conservation
practice design, layout, and installation; and certification that the
conservation practice meets NRCS standards and specifications.
* * * * *
0
4. Section 652.3 is amended by removing the word ``and'' from the end
of paragraph (c)(3), redesignating paragraph (c)(4) as (c)(5), and
adding a new paragraph (c)(4) to read as follows:
Sec. 652.3 Administration.
* * * * *
(c) * * *
(4) Provide training to ensure that persons meet the certification
criteria for certain technical expertise when there is a lack of
training resources or market outside the agency for such technical
expertise. However, any training provided by the Department will be
limited to training about Department regulations, policies, procedures,
processes, and business and technical tools unique to NRCS; and
* * * * *
0
5. Section 652.5 is amended by revising paragraph (e), redesignating
paragraph (j) as paragraph (k), redesignating paragraphs (f) through
(i) as paragraphs (g) through (j), and adding new paragraphs (f), (l),
(m) to read as follows:
Sec. 652.5 Eligible participant acquisition of technical services.
* * * * *
(e) The technical assistance indicated in paragraph (d) may include
the development of conservation plans or activity plans suitable for
subsequent incorporation into a program contract.
(f) The Department may make payment to eligible participants who
have a technical service contract and utilize it for technical
assistance from a technical service provider.
* * * * *
(l) The Department shall not make payment for activities or
services that are customarily provided at no cost by a technical
service provider to a participant as determined by the State
Conservationist.
(m) Payment rates for technical services acquired by participants.
(1) NRCS will calculate TSP payment rates for technical services
using national, regional, and locally determined price data.
(2) Establishing TSP payment rates.
(i) NRCS will establish guidelines to analyze the local pricing
information using a standardized method.
(ii) The State Conservationist will establish TSP payment rates in
each State for the various categories of technical services. The State
Conservationist will determine the rates according to local NRCS cost
data, procurement data, and market data.
(iii) NRCS at the National Office will review and approve State
payment rates to ensure consistency where similar resource conditions
and agricultural operations exist. Payment rates may vary to some
degree between or within States due to differences in State laws, the
cost of doing business, competition, and other variables.
(iv) NRCS at the State and National levels will review payment
rates annually, or more frequently as needed, and adjust the rates
based upon data from existing procurement contracts, Federal cost
rates, and other appropriate sources.
(v) NRCS may adjust payment rates, as needed, on a case-by-case
basis, in
[[Page 2806]]
response to unusual conditions or unforeseen circumstances in
delivering technical services such as highly complex technical
situations, emergency conditions, serious threats to human health or
the environment, or major resource limitations. In these cases, NRCS
will set a case-specific TSP payment rate based on the Department's
determination of the scope, magnitude, and timeliness of the technical
services needed.
0
6. Section 652.6 is amended by redesignating paragraphs (b) through (e)
as paragraphs (d) through (g), adding new paragraphs (b) and (c), and
amending redesignated paragraph (e) by adding a second sentence to read
as follows:
Sec. 652.6 Department delivery of technical services.
* * * * *
(b) The Department may also enter into a procurement contract,
contribution agreement, cooperative agreement, or other appropriate
instrument with technical service providers to provide related
technical assistance services that accelerate conservation program
delivery. Related technical assistance services may include activities
or services that facilitate the development, processing, or
implementation of a program contract, such as recording conservation
planning decisions and specifications.
(c) NRCS may enter into agreements with other agencies or with a
non-Federal entity to provide technical services to eligible
participants.
* * * * *
(e) * * * Any contract, contribution agreement, cooperative
agreement, or other appropriate instrument entered into under this
section shall be for a minimum of one year, shall not exceed three
years in duration, and may be renewed upon mutual agreement of the
parties.
* * * * *
Signed this 9th day of January 2009, in Washington, DC.
Arlen L. Lancaster,
Chief, Natural Resources Conservation Service.
[FR Doc. E9-828 Filed 1-15-09; 8:45 am]
BILLING CODE 3410-16-P
