[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2800-2806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-828]
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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.
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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 http://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 http://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: [email protected].
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