2800 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(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. 

§ 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 

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 

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: 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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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 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 


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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 § 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. 

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 

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 

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 

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). 

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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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 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. 

■ 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: 

§ 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 

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 

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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2806 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

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] 

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. 

SUPPLEMENTARY INFORMATION: 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.’’ 

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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