[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Rules and Regulations]
[Pages 40751-40754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17260]



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  Federal Register / Vol. 68, No. 131 / Wednesday, July 9, 2003 / Rules 
and Regulations  

[[Page 40751]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 652


Technical Service Provider Assistance

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rulemaking amends the technical service provider 
assistance interim final rule published in the Federal Register on 
November 21, 2002, by providing a limited exception to the 
certification and payment requirements when the Department is 
partnering with State, local, or tribal governments to carry out its 
duties to provide technical services.

DATES: Effective date: July 9, 2003. Comments on this amendment must be 
received by August 8, 2003.

ADDRESSES: Send comments by mail to Melissa Hammond, Technical Service 
Provider Coordinator, Natural Resources Conservation Service, P.O. Box 
2890, Washington, DC 20013, or by e-mail to: [email protected], 
Attention: Technical Service Provider Assistance. This interim final 
rule may also be accessed via the Internet through the NRCS homepage at 
http://www.nrcs.usda.gov, by selecting Farm Bill 2002.

FOR FURTHER INFORMATION CONTACT: Melissa Hammond, Technical Service 
Provider Coordinator, Strategic Natural Resource Issues Staff, NRCS, 
P.O. Box 2890, Washington, DC 20013-2890; telephone: (202) 720-6731; 
fax: (202) 720-3052; submit e-mail to: [email protected], Attention: 
Technical Service Provider Assistance.

SUPPLEMENTARY INFORMATION:

Discussion

    This amendment is effective on the date published in the Federal 
Register in order to address the technical service delivery needs this 
fiscal year. The Department follows the Administrative Procedure Act 
(APA) rulemaking procedures specified in 5 U.S.C. 553 in the 
development of Departmental regulations. The APA provides exceptions to 
its notice and public comment procedures when an agency finds there is 
good cause for dispensing with such procedures on the basis that they 
are impracticable, unnecessary, or contrary to the public interest. The 
Department has determined that, under 5 U.S.C., 553(b)(B) good cause 
exists for dispensing with the notice and public comment procedures for 
this rule. Good cause exists because this interim final rule preserves 
historical means of working with governmental entities necessary to 
carry out technical services. Not providing for traditional 
relationships in carrying out technical services will result in delay 
in carrying out technical services and therefore implementation of the 
Farm Bill conservation programs.
    It is not practical or in the public interest to delay 
implementation of the technical service provider process established as 
a result of the Farm Security and Rural Investment Act of 2002 (2002 
Farm Bill). The 2002 Farm Bill authorized several conservation programs 
and provided substantial funding to implement the programs. In order to 
accomplish implementation, significant technical services from the 
private sector and public agencies are needed. Without moving 
expeditiously to engage public agencies in addressing this workload 
this fiscal year, the technical assistance funds will not be available 
for program participants to plan and apply needed conservation 
practices during the current fiscal year. This exception facilitates 
this critical implementation.
    This limited exception does not reflect a change in the 
Department's commitment to developing a private sector technical 
service provider industry. The Department remains committed to 
developing private sector technical service providers. Also, this 
exception does not lower the technical standards public agencies must 
meet in order to be qualified to provide technical services through 
contribution agreements. Through this amendment, the Department is 
reaffirming its commitment to the certification process as set forth in 
7 CFR part 652 while at the same time recognizing the long-standing, 
unique, and productive relationships the Department has had with those 
agencies in delivering technical services by providing for an exception 
to the certification process under certain limited circumstances and 
conditions.
    This limited exception does not change the qualifications or 
technical requirements for providing technical services. The only 
change is the method used to recognize those qualifications. Public 
agencies have qualified technical staff to provide technical services. 
The limited exception in the rule allows for the efficient and 
effective recognition of those qualifications.
    All comments submitted during this rulemaking will be considered 
during promulgation of a final rule.
    Section 1242 of the Food Security Act, as amended by the Farm 
Security and Rural Investment Act of 2002 (2002 Farm Bill), require 
that the Secretary establish a system for approving individuals and 
entities to provide technical assistance to implement conservation 
programs under Title XII of the Food Security Act of 1985.
    At 7 CFR part 652, the Department set forth a process to approve 
individuals, private-sector entities, and public agencies as technical 
service providers through a technical service provider certification 
process. In this rulemaking, the Department is amending 7 CFR part 652 
to provide for a limited exception to the certification and payment 
requirements when the Department is partnering with State, local, or 
tribal governments to assist the Department in carrying out its duties 
to provide technical services. This limited exception is necessary in 
order to continue the Department's long-standing, unique, and 
productive relationship with conservation districts and other 
governmental entities in the provision of technical assistance. This 
exception is only applicable when the Department is partnering with a 
State, local, or tribal government in carrying out the Department's 
duties to provide technical services. When a governmental entity seeks 
to compete for procurement contracts, or cooperative agreements with 
the

[[Page 40752]]

Department, or seeks to provide technical services directly to a 
participant as a technical service provider, the certification 
requirements of 7 CFR part 652 apply.
    The Department has limited this exception to governmental entities 
and declined to expand the exception to non-governmental organizations 
and others for several reasons. First, the limited purpose of this 
amendment was to preserve and recognize the Department's long-standing, 
productive partnership with conservation districts and other 
governmental entities that have been critical in the Department's 
delivery of technical assistance. Government entities share the same 
general mission as the Department as they exist to serve the public. In 
addition, by carving out a limited exception, the Department also 
maintains the integrity of the certification process as set forth in 7 
CFR part 652, which seeks to treat all parties who wish to provide 
technical services similarly. Moreover, the Department believes that it 
would be difficult to justify further expanding this exception in order 
to include particular groups within the private sector and not others.
    During the Dust Bowl days of the 1930s, Congress declared soil and 
water conservation a national priority, and established the Soil 
Erosion Service to provide temporary emergency assistance by soil and 
climate experts. The success of this effort led to the establishment of 
a permanent agency, the Soil Conservation Service, now the Natural 
Resources Conservation Service (NRCS). Since the Federal government 
alone could not solve the problems faced by farmers and ranchers, the 
challenge was to determine a way to maintain a central national corps 
of erosion control expertise, while enabling local units of government, 
individuals, counties, States, and tribes to take the lead in solving 
the problems of soil erosion.
    To encourage landowners to adopt and promote land-conservation 
initiatives, in 1936, the United States Department of Agriculture 
(USDA) created a template for State legislatures to consider in 
establishing conservation districts called the Standard State Soil 
Conservation District Law. The conservation district was classified as 
a ``special district.'' It had limited purposes, unlike a unit of 
general government, such as a county or city. The powers of the 
district included conducting surveys and research, disseminating 
information, conducting demonstrations of conservation practices, and 
carrying out prevention and control measures.
    The organization of conservation districts began after State 
legislatures passed laws based on the 1936 standard. Fifty-two states 
and territories have adopted conservation district legislation, 
allowing landowners to create their own districts. Many Native American 
tribes have also established conservation districts.
    Integral to the functioning of the conservation district are three-
way mutual agreements between the Secretary of Agriculture, State and 
territorial governors or their designees, and each conservation 
district. Through the mutual agreements, USDA works with conservation 
districts to secure local guidance and gain approval for local delivery 
of conservation programs on the Nation's private lands. Also, NRCS 
enters into cooperative working agreements with conservation districts 
to define cooperation between NRCS and conservation districts in the 
conservation of natural resources. Trained NRCS conservationists work 
with individual farmers and ranchers, through conservation districts, 
to solve their specific conservation problems.
    Districts are governed by a board of directors who are owners or 
occupiers of land within the conservation district, and are locally 
elected or appointed. Additionally, each board may appoint several 
nonvoting associate directors. Board members carry out conservation 
activities within the district and meet regularly to conduct business.
    Conservation district employees hired by the district, such as 
district managers, clerks, conservationists, and technicians, aid in 
carrying out conservation activities. All conservation district 
employees are critical members of the local field office conservation 
team, and work directly and cooperatively with NRCS.
    District employees obtain training and engineering job approval 
authority from NRCS to carry out conservation planning and conservation 
practice implementation. They generally work under the direct technical 
guidance of NRCS. Conservation planning and application carried out by 
conservation district employees must meet NRCS policy, procedures, 
standards, and specifications and is subject to ongoing quality 
assurance. This relationship, or team effort, between NRCS and 
conservation districts dates back more than 60 years to the formation 
of districts, and constitutes a unique, long-standing, well-accepted, 
and successful partnership for addressing the conservation needs within 
the district.
    NRCS desires to continue this relationship with conservation 
districts and to approve conservation district employees to provide 
technical services through cooperative working agreements between NRCS 
and conservation districts, provided that the conservation district 
employees meet the requisite criteria for providing technical services. 
In order for conservation district employees to be approved to provide 
technical service provider technical services in partnership with the 
Department, they must meet the requirements and skill levels 
established in the cooperative working agreements prior to being 
covered under the terms of the cooperative working agreements.
    The cooperative working agreements will clearly describe the terms 
and conditions for conservation district employees to provide technical 
services, including items such as meeting NRCS standards and 
specifications for technical services and compliance with applicable 
laws and regulations. When the Department is contributing financial 
resources through a partnership with a conservation district, such a 
relationship must be memorialized by a contribution agreement which 
sets forth all the terms and conditions of the relationship, including 
scope of work, compliance with standards and applicable laws, etc. 
Conservation districts must contribute at least 50 percent of the 
resources needed for implementing the contribution agreement.
    While NRCS has a unique relationship with conservation districts, 
NRCS also has existing relationships with many other natural resource 
related public agencies and tribal agencies interested in providing 
technical services in partnership with the Department. Many public 
agencies have unique training and experience related to the delivery of 
specific conservation technical services that match the needs for 
technical services needed to plan and implement conservation systems 
and practices. To maintain those relationships, and to develop new 
relationships, NRCS may approve other public agency and tribal agency 
employees to provide technical services through the use of memoranda of 
understanding (MOU) between NRCS and those natural resource related 
agencies interested in partnering with the Department to provide 
technical services, provided that the public agency employees meet the 
requisite criteria for providing technical services. In order for 
public agency employees to be approved to provide technical service 
provider technical services in partnership with the Department, under 
the terms of the MOU, they must first meet the requirements and skill 
levels

[[Page 40753]]

established in the MOU. As is the case with conservation districts, 
when the Department contributes financial resources through a 
partnership with public and tribal agencies, the Department will enter 
into a contribution agreement memorializing and setting forth the terms 
of the relationship. Public agencies must contribute at least 50 
percent of the technical resources needed for implementing the 
contribution agreement.
    The MOUs and contribution agreements with public and tribal 
agencies will reflect the terms and conditions for the public agency 
employees to provide technical services as technical service providers, 
including items such as meeting USDA standards and specifications, 
compliance with applicable laws and regulations and other applicable 
terms. Public and tribal agencies providing technical service provider 
assistance are liable for the technical services provided by their 
employees and must warrant the technical services provided.

Regulatory Certifications

Executive Order 12866

    Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), 
it has been determined that this interim final rule is a significant 
regulatory action, and has been reviewed by the Office of Management 
and Budget (OMB). Pursuant to Section 6(a)(3) of Executive Order 12866, 
NRCS conducted an economic analysis of the potential impacts associated 
with the interim final rule for Technical Service Provider Assistance 
published in the Federal Register on November 21, 2002, and included 
the analysis as part of a Regulatory Impact Analysis document prepared 
for that interim final rule. The provisions of this interim final rule 
do not alter the analysis that was originally prepared. A copy of the 
analysis is available upon request from Gary Gross, Resource 
Conservationist, Natural Resources Conservation Service, P.O. Box 2890, 
Washington, DC 20013-2890; or by e-mail to [email protected], 
Attention: Technical Service Provider Assistance--Economic Analysis; or 
at the following web address: http://www.nrcs.usda.gov.

Executive Order 12988

    This interim final rule has been reviewed in accordance with 
Executive Order 12988. The provisions of this interim final rule are 
not retroactive. The U.S. Department of Agriculture (USDA) has not 
identified any State or local laws that are in conflict with this 
regulation, or that would impede full implementation of this rule. In 
the event that such conflict is identified, the provisions of this 
interim final rule preempt State and local laws to the extent that such 
laws are inconsistent with this rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because the Secretary of Agriculture 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.

National Environmental Policy Act

    The regulations promulgated by this rule do not authorize any 
action that may affect the human environment. Accordingly, an analysis 
of impacts under the National Environmental Policy Act, 42 U.S.C. 4321 
et seq., has not been performed. This interim final rule will help 
implement new and existing USDA conservation programs, which are 
subject to the environmental analyses pursuant to the National 
Environmental Policy Act.

Paperwork Reduction Act

    Section 2702 of the Farm Security and Rural Investment Act of 2002 
requires that the promulgation of regulations and the administration of 
Title II of said Act, which authorizes the use of certified technical 
service providers, be carried out without regard to Chapter 35 of Title 
44 of the United States Code (commonly known as the Paperwork Reduction 
Act). Accordingly, these regulations, related forms, and other 
information collection activities needed to establish payment rates 
under these regulations, are not subject to review by the Office of 
Management and Budget under the Paperwork Reduction 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 with the option 
of submitting information or transacting business electronically to the 
maximum extent possible, and to NRCS in particular. The forms and other 
information collection activities required for participation in 
technical services delivery under the technical service provider 
assistance rule, amended by this rule, are not fully implemented for 
the public to conduct business with NRCS electronically. However, the 
required standard forms discussed in this rule will be available 
electronically through the USDA eForms Web site, at http://www.sc.egov.usda.gov, for downloading. The regulation will be available 
at the NRCS homepage at http://www.nrcs.usda.gov.

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.

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.

Civil Rights Impact Analysis

    A Civil Rights Impact Analysis was completed for the interim final 
rule for Technical Service Provider Assistance published in the Federal 
Register on November 21, 2002. The provisions of this interim final 
rule do not alter analysis that was originally prepared. The review 
revealed 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 Gary Gross, Resource 
Conservationist, Natural Resources Conservation Service, P.O. Box 2890, 
Washington, DC 20013-2890; or by e-mail to [email protected], 
Attention: Technical Service Provider Assistance--Civil Rights Impact 
Analysis; or at the following web address: http://www.nrcs.usda.gov.

List of Subjects in 7 CFR Part 652

    Natural Resources Conservation Service, Soil conservation, 
Technical assistance, Water resources.

0
For the reasons stated in the preamble, the Natural Resources 
Conservation Service hereby amends Title 7 of the Code of Federal 
Regulations as set forth below:
0
Accordingly, Title 7 of the Code of Federal Regulations part 652 is 
amended by adding a new section, 652.8, to subpart A.

[[Page 40754]]

PART 652--TECHNICAL SERVICE PROVIDER ASSISTANCE

0
1. The authority citation for part 652 is revised to read as follows:

    Authority: 16 U.S.C. 3842, 7 U.S.C. 6962a.


0
2. Subpart A is amended by adding a new Sec.  652.8 to read as follows:
* * * * *


Sec.  652.8  Limited Exception to Certification Requirements for State, 
Local and Tribal Government Partners.

    (a) In carrying out its duties to deliver technical services, the 
Department may enter into agreements, as provided for below, with 
State, local, and tribal governments (including conservation districts) 
approving such governmental entities to provide technical services when 
the Department determines that such a partnership is an effective means 
to provide technical services.
    (b) In the case of conservation districts, the cooperative working 
agreements between NRCS and the conservation districts will be amended 
to ensure that district employees have the requisite training or 
experience in order to provide technical services. For other 
governmental entities, the Department will enter into memoranda of 
understanding to ensure that employees of the governmental entity have 
the requisite training or experience to carry out the technical 
services. The governmental entity is not required to be certified under 
the provisions of this regulation in order to provide technical 
services nor do the other provisions of this regulation apply to any 
partnership relationship entered into under the authority of this 
section. The responsibilities of the parties will be governed by the 
terms of the cooperative working agreement or the memoranda of 
understanding and the contribution agreement, if any.
    (c) Any cooperative working agreement entered into with a 
conservation district or any memoranda of understanding entered into 
with a State, local, or tribal government will set forth the specific 
terms of the Department's approval of such an entity to provide 
technical services in partnership with the Department, as well as the 
scope of the relationship. If the Department is providing any financial 
resources to effectuate such a partnership, the Department will use a 
contribution agreement to memorialize the relationship, which will 
include in its terms the requirement that any technical services 
provided will meet NRCS standards and specifications. Conservation 
districts and other governmental entities must contribute at least 50 
percent of the resources needed for implementing the contribution 
agreement.
    (d) Governmental entities that are technical service providers 
shall not be eligible to receive payment under a program contract or 
agreement for technical services provided to a program participant if 
the governmental entity has entered into a memorandum of understanding 
or contribution agreement under this section to provide technical 
services to that program participant.

    Signed in Washington, DC, on June 27, 2003.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 03-17260 Filed 7-8-03; 8:45 am]
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