[Federal Register: July 9, 2003 (Volume 68, Number 131)]
[Rules and Regulations]
[Page 40751-40754]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy03-1]
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[[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: melissa.hammond@usda.gov <mailto:melissa.hammond@usda.gov>,
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 <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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: gary.gross@usda.gov <mailto:gary.gross@usda.gov>, 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 gary.gross@usda.gov <mailto:gary.gross@usda.gov>,
Attention: Technical Service Provider Assistance--Economic Analysis; or
at the following web address: http://www.nrcs.usda.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.sc.egov.usda.gov>
, for downloading. The regulation will be available
at the NRCS homepage at http://www.nrcs.usda.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 gary.gross@usda.gov <mailto:gary.gross@usda.gov>,
Attention: Technical Service Provider Assistance--Civil Rights Impact
Analysis; or at the following web address: http://www.nrcs.usda.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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]
BILLING CODE 3410-16-P
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