[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:
    <bullet> Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments 
electronically.
    <bullet> Mail: Technical Service Provider Team, Natural Resources 
Conservation Service, Technical Service Provider Assistance Comments, 
P.O. 2890, Room 5234-S, Washington, DC 20013.
    <bullet> Fax: 1-202-720-5334.
    <bullet> 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.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#3c686f6c0e0c0c047c4b585f12494f585d125b534a"><span class="__cf_email__" data-cfemail="653136355755555d251201064b101601044b020a13">[email protected]</span></a>.

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Prohibit activities or services that are customarily 
provided at no cost by a third party provider from being eligible for 
TSP payment.
    <bullet> Require the Secretary to establish fair and reasonable 
payment rates for technical services provided by third party providers.
    <bullet> 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


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