[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69450-69478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25990]



[[Page 69449]]

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Part II





Department of Agriculture





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Natural Resources Conservation Service



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7 CFR Part 652



Technical Service Provider Assistance; Final Rule

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / 
Rules and Regulations

[[Page 69450]]


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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 652


Technical Service Provider Assistance

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS) is issuing a 
final rule for technical service provider assistance as authorized 
under section 1242 of the Food Security Act of 1985 (Food Security 
Act), as amended by the Farm Security and Rural Investment Act of 2002, 
P.L. 107-171 (2002 Farm Bill). This final rule responds to comments 
received on the Interim Final Rule and two amendments, makes 
adjustments to the implementation of Technical Service Provider (TSP) 
assistance in response to these comments, and sets forth the final 
process for providing conservation technical assistance through 
technical service providers. The Secretary of Agriculture has delegated 
responsibility for administering technical services provided by 
technical service providers to NRCS.

DATES: Effective November 29, 2004.

FOR FURTHER INFORMATION CONTACT: Angel Figueroa, Technical Service 
Provider Coordinator, NRCS, P.O. Box 2890, Washington, DC 20013-2890, 
telephone: (202) 720-2520; fax: (202) 720-0428; submit e-mail to: 
<a href="/cdn-cgi/l/email-protection#94f5faf3f1f8baf2fdf3e1f1e6fbf5d4e1e7f0f5baf3fbe2"><span class="__cf_email__" data-cfemail="a4c5cac3c1c88ac2cdc3d1c1d6cbc5e4d1d7c0c58ac3cbd2">[email protected]</span></a>, Attention: Technical Service Provider 
Assistance.

SUPPLEMENTARY INFORMATION: NRCS is issuing a 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 statutory authority, the 
promulgation of the Interim Final Rule and the two amendments thereto 
implementing such authority, summary analysis of the comments received, 
significant modifications NRCS is making to the rule in response to the 
comments, and a section-by-section summary of the comments received and 
the agency response.

Historical Background

    In 1994, the Department of Agriculture reorganized and transferred 
increased responsibilities for administration of conservation programs 
to the NRCS to provide technical and financial assistance to producers 
to improve the natural resource conditions on their land. The Federal 
Agricultural Improvement and Reform Act of 1996 (1996 Farm Bill), 
Public Law 104-127, created several new conservation programs for which 
the Secretary of Agriculture delegated administrative responsibility to 
NRCS.
    Through the implementation of its conservation programs, NRCS 
utilizes its technical expertise to provide producers with information 
to help them make land management decisions. When a producer applies to 
participate in a conservation program, NRCS helps the producer evaluate 
the resource conditions on their land to determine the most appropriate 
way to meet the producer's conservation objectives. Through its 
conservation planning process, NRCS helps the producer develop a 
conservation plan and, depending upon the availability of funds, the 
Department provides financial assistance to the producer to implement 
identified conservation practices or systems.

The 2002 Farm Bill

    The 2002 Farm Bill expanded the availability of financial and 
technical assistance funds for the implementation of conservation 
programs. At the time of enactment, the Congressional Budget Office 
estimated that the 2002 Farm Bill represented a $17 billion increase in 
the level of funding for conservation programs.
    The current staffing levels of NRCS are insufficient to adequately 
meet the increased need for technical assistance under the conservation 
programs authorized or re-authorized by the 2002 Farm Bill. Section 
2701 of the 2002 Farm Bill amended Section 1242 of the Food Security 
Act to require the Secretary of Agriculture to provide technical 
assistance for conservation programs authorized under Title XII of the 
Food Security Act 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.
    Section 1242 of the Food Security Act greatly expands the 
availability of technical assistance to producers by encouraging other 
non-USDA potential providers of technical assistance to assist in the 
delivery of technical services. To ensure that high quality technical 
services are available to all producers, Section 1242 requires the 
Secretary of Agriculture to establish, by regulation, a system for 
``approving individuals and entities to provide technical assistance to 
carry out programs under the [Farm Bill] * * * and establishing the 
amounts and methods for payments for that assistance.''

Overview of Technical Service Provider Assistance

    In the winter 2003, NRCS launched TechReg, a Website, through which 
individuals, businesses, and public agencies may apply to become 
certified TSPs. It also provides conservation participants with a 
registry for identifying certified TSPs. As of October 2004, there were 
approximately 2,100 entities (individuals or businesses) listed as 
certified in the TechReg registry. There remained about 1,300 
certifications pending.
    During fiscal years (FY) 2003 and 2004, NRCS obligated 
approximately $23 and $48 million for technical service provider 
assistance, and NRCS has a goal of obligating at least $35 million for 
technical service provider assistance during FY 2005.

Interim Final Rule and Amendments

    NRCS published an Interim Final Rule on November 21, 2002, (67 FR 
70119) that established a certification process under which NRCS 
evaluates and approves individuals, entities, and public agencies as 
eligible to provide conservation technical services for certain 
conservation programs. The Interim Final Rule also established the 
criteria by which NRCS evaluates all potential providers of technical 
assistance.
    The Interim Final Rule distinguished between certification of an 
individual working under his or her own auspices and that of an 
organization, such as a corporation or a public agency, which has 
individuals working on its behalf. Certification of an individual means 
the individual has the requisite education and technical expertise to 
perform the technical services. Certification of an entity or public 
agency means that the organization could receive payment for the 
services provided by individuals working under its auspices provided 
certified individuals review the work while the organization assumes 
the liability for the quality of work performed.
    The Interim Final Rule requires that the same certification process 
applies regardless of the individual or entity's desire to provide 
technical service through USDA or directly to participants. NRCS 
requested comments on proposed methods for determining payment rates 
for reimbursing participants for technical services obtained from 
certified TSPs stipulating

[[Page 69451]]

that the payment method would be set forth in a subsequent rule-making.
    The Interim Final Rule also sets forth conditions and procedures by 
which NRCS determines that a certified technical service provider has 
failed to provide producers technical services of adequate quality, and 
thus, should not remain certified as a provider of technical assistance 
for conservation programs under Title XII of the Food Security Act.
    The Interim Final Rule had a 90-day comment period. On March 31, 
2003, NRCS re-opened the comment period for the Interim Final Rule and 
extended the comment due date to April 30, 2003. NRCS received 1350 
comments on the Interim Final Rule from over 350 entities, both private 
and public, to the Interim Final Rule.
    On March 24, 2003, NRCS published an amendment to the Interim Final 
Rule in the Federal Register (68 FR 14131), establishing the process 
for determining payment levels for technical service provider 
assistance. In addition, the amendment sets forth the policy regarding 
subcontracting by technical service providers in the course of their 
delivery of technical services. The amendment also clarifies the 
process for certification and amended the definition of technical 
service provider. The March 24, 2003, amendment had a 90-day comment 
period. NRCS received 15 comments from seven entities.
    On July 9, 2003, NRCS published a second amendment to the Interim 
Final Rule in the Federal Register (68 FR 40751), establishing 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. The July 9, 
2003, amendment had a 30-day comment period. Eleven entities submitted 
25 comments on this second amendment to NRCS.

Organizational Differences Between the Interim Final Rule and Final 
Rule

----------------------------------------------------------------------------------------------------------------
                                           Interim final rule                           Final rule
      Change description       ---------------------------------------------------------------------------------
                                     Section No.            Heading           Section No.            Heading
----------------------------------------------------------------------------------------------------------------
[rtrif] Sections on             7 CFR 652.1..........  Definitions.....  7 CFR 652.1..........  Applicability.
 definitions and applicability  7 CFR 652.2..........  Applicability...  7 CFR 652.2..........  Definitions.
 exchanged places.
[rtrif] Exception section       7 CFR 652.8..........  Limited           7 CFR 652.6..........  Department
 content incorporated in                                Exception to                             Delivery of
 section on Department                                  Certification                            Technical
 acquisition of services,                               Requirements                             Services.
 eliminating the need for this                          for State,
 section.                                               Local, and
                                                        Tribal
                                                        Government
                                                        Partners.
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    Note: The final rule contains no further organizational changes.

Overview of Public Comments

    In this final rule, NRCS reorganized several of the sections to 
improve the regulation's overall organization. For example, NRCS 
received comments that it would be better to have the applicability and 
administration sections of the rule described prior to the definitions 
section in order to provide an overview of the rule's applicability. 
Accordingly, Sec.  652.1 of the Interim Final Rule has been moved to 
Sec.  652.2 of the final rule. Additionally, NRCS removed several 
provisions in the administration section that addressed internal 
administrative matters that did not need to be incorporated in 
regulation. These changes were not substantive changes. NRCS made such 
adjustments in the final rule; however, NRCS has organized the 
discussions regarding public comments in the same sequence as the 
sections appeared in the Interim Final Rule.
    NRCS received 1350 comments from over 350 entities on the Interim 
Final Rule. Among these comments, NRCS received two series of batch 
letters from individuals, conservation districts, and certified crop 
advisors. The March 24, 2003, amendment had a 90-day comment period, 
and NRCS received 15 comments from seven entities to this amendment. 
The July 9, 2003, amendment had a 30-day comment period. NRCS received 
25 comments from 11 entities to this second amendment. NRCS considered 
all these comments received to the Interim Final Rule and the two 
amendments, and responds to these collectively in its section-by-
section discussion below. Overall, most comments commended NRCS for 
publishing the rule and its ongoing efforts to develop and implement an 
effective TSP process.
    Most of the comments NRCS received on the November 21, 2002, TSP 
Interim Final Rule related to Subpart A and Subpart B. Of the comments 
received on Subpart A, the sections regarding administration, technical 
service standards, and participant acquisition of technical services 
received the majority of the comments.
    In the administration section, Sec.  652.3, 20% expressed concern 
over the changing relationship between NRCS and conservation districts. 
Ten percent expressed support for the evaluation of NRCS' historic 
relationship and existing agreements with providers of technical 
services to avoid conflicts of interest. The same 10% also recommended 
that NRCS not enter into any Memoranda of Understanding or agreements 
with any group or program that does not have or enforce its written 
code of ethics.
    In the section regarding technical service standards, Sec.  652.4, 
the primary concern in this section was liability, with over 40% of the 
comments focused on the issue. Though comments expressed understanding 
for the need to hold providers liable for services rendered, most 
members of the private sector expressed strong concern over being held 
fully liable for an overall project, even when the TSP is not involved 
in all phases of the project's technical service delivery. The other 
concern expressed was for liability in situations where NRCS standards 
and specifications were met, but final outcome proved deficient. In 
addition, numerous Extension Service employees expressed concerns over 
the extent of liability of TSP trainers. 30% of comments supported the 
Agency's allowance of new technologies and innovative practices upon 
prior NRCS approval, and also sought the use of TSPs as a means of 
expanding these and alternative methods to promote sustainable 
agriculture. Finally, over 10% of comments suggested that the Agency 
provide clarification on the process, roles, and responsibilities of 
TSPs relating to liability and reporting accomplishment data to NRCS.
    In the section regarding participant acquisition of technical 
services, Sec.  652.5, NRCS received over 160 comments. Most comments 
expressed disappointment that NRCS did not promulgate the rule 
amendment about payment rates within the 30 days time-frame originally 
set forth in the preamble of the Interim Final Rule. Of

[[Page 69452]]

the three payment rate options published in original Interim Final 
Rule, most comments supported not-to-exceed rates, though there was 
concern about the method through which NRCS would establish these 
rates. Several comments expressed opinion that prices needed to be 
based on realistic estimates based on data from both the public and 
private sectors. Establishing flat rates received least support as it 
was perceived as not allowing for geographic differences and 
marketplace fluctuations. Commenters also expressed concern that the 
Privacy Act and Freedom of Information Act did not apply to information 
provided by participants to TSPs directly hired by the participants. 
The public requested additional clarification on the roles and 
responsibilities of NRCS, its contractors, participants, and TSPs hired 
directly by participants on matters related to the confidentiality of 
information.
    NRCS also received many comments regarding the section about the 
Department's delivery of technical services, Sec.  652.6. Under this 
section, NRCS received the most comments on two areas: (1) Potential 
conflicts of interest; and (2) the 50% matching requirement for 
contribution agreements. Most comments were submitted primarily in a 
batch letter format. In terms of potential conflicts of interest, over 
55% comments came from certified crop advisors who expressed strong 
opposition to statements suggesting conflicts of interest with private 
technical service providers who sell agriculture input products. These 
commenters felt strongly that these statements failed to recognize the 
trust and strong relationships developed over the years between farmers 
and their consultants. This group also expressed frustration with the 
slow development of agreements for technical services between NRCS and 
the private sector.
    However, over 25% comments of the comments received on this issue 
did not support the certification of entities engaged in the selling of 
agricultural products. NRCS also received numerous comments related to 
the requirement that the TSP provide a 50 percent match under a 
contribution agreement, with 30% stating that the matching requirement 
should be lowered or eliminated.
    Under Subpart B of the Interim Final Rule, Certification, NRCS 
received over 220 comments primarily in the areas certification 
criteria, training, and certification costs and fees. Most comments 
expressed the need to have strong, rigorous, and uniform certification 
criteria that set the bar high enough to ensure that only qualified 
people received certification. The commenters also expressed that NRCS 
should recognize demonstrated competence, allow for recognition of 
private sector certification programs, and encourage involvement from 
professional societies, universities, and others qualified sectors. 
Many commenters expressed that certification criteria should also seek 
to promote a more holistic approach to the delivery of conservation 
technical services. Overall, the commenters believe that the 
certification process goes hand in hand with success of the TSP process 
and delivery of quality services, and overall quality assurance. 
Several wildlife groups expressed frustration with their wildlife 
qualifications not meeting the criteria for wildlife professionals 
identified in TechReg.
    Most of the comments related to training expressed a need for the 
evaluation of a high quality training program that addresses continuing 
education, facilitates reciprocity from one State to another, avoids 
duplication with private sector certification programs, focuses on 
Department/NRCS protocol and procedures, recognizes the technical 
expertise of State agencies, and specifies training requirements that 
are equally stringent for all providers of technical service. Of the 
comments related to costs and fees, over 20 universities and Extension 
Service entities provided comments expressing interest in providing 
training and in having capacity to provide training, but also needing 
funding to cover training costs, including supplemental funds from 
NRCS. This same group expressed a belief that universities cannot 
provide education at no-cost and should be allowed to create fee 
structures that cover program development and delivery costs while 
meeting educational needs. Several comments from private sector 
entities expressed opposition to being charged for certification costs, 
as they have already paid fees to meet training program requirements 
and State requirements.

Summary of Changes

    NRCS analyzed the comments received related to the Interim Final 
Rule and the amendments. NRCS established an interdisciplinary team of 
agency staff to evaluate comments as well as the Department's 
experience gained from implementation of the Interim Final Rule in its 
first year. The team reviewed overall agency operation of the TSP 
provisions and ascertained efficiencies that could be gained through 
adjustments to the process. The public comments and the internal review 
identified several common areas needing clarification, and as a result, 
NRCS has incorporated the following changes in the final rule: (1) 
Verification of TSP credentials, (2) liability of technical service 
providers, (3) Department acquisition of technical services, (4) cost-
share incentives, and (5) customer utilization of technical service 
providers prior to entering program agreements. NRCS describes below 
its basis for the changes in these five areas within the section-by-
section discussion of the public comments received.

Section-by-Section Comments and Response

Section 652.1 Definitions

    Comment: NRCS received 15 comments on Sec.  652.1, Definitions. In 
particular, NRCS received 4 comments referring to the inclusion of 
conservation planning in the definition of ``technical services'' and 
recommended that the quality assurance section, Sec.  652.7, provide 
for separate and specific measures for quality assurance as it relates 
to conservation planning and conservation practice implementation. 
Seven commenters suggested that ``deficient, harm, and injury'' are 
terms that are difficult to define and recommended that NRCS add 
language to clarify these and similar terms in the rule. One commenter 
recommended that the acronym ``TSP'' not be used for Technical Service 
Provides since it causes confusion with the Thrift Savings Plan. One 
commenter suggested that the term ``entity'' should include specific 
reference to farmer cooperatives. One commenter recommended that 
Conservation Districts be explicitly referred to as a public entity 
TSP.
    Response: NRCS agrees that specific standards should be developed 
for conservation planning and conservation practice implementation, and 
will incorporate new language in its quality assurance policy to 
address the specific needs of both planning and implementation. 
However, because the quality assurance process is an internal 
management process, NRCS has determined that it is not appropriate to 
set forth the specifics of its quality assurance policy in this 
rulemaking. The terms ``deficient, harm, and injury'' are legal 
standards surrounding the duty of care owed by a professional to a 
customer or client, the parameters of which are established in case law 
regarding such duties of care. Therefore, NRCS does not believe that 
further clarification is warranted in the rule. The acronym ``TSP'' may 
cause confusion to Federal employees who participate in the Thrift 
Saving Plan

[[Page 69453]]

program, but NRCS believes the general public can distinguish between a 
Federal retirement benefits system and a delivery mechanism for 
technical services. Therefore, NRCS will continue to use the acronym 
``TSP.'' NRCS agrees that farmer cooperatives have delivered valuable 
services to farmers in the past, and NRCS wants to assure that equal 
access is provided to all available sources of technical services. 
Therefore, NRCS has added the term ``cooperative'' to the definition of 
``entity'' in the final rule. However, NRCS believes that its 
definition of ``public agency'' adequately encompasses Conservation 
Districts since it includes subdivisions of State and local government. 
While NRCS appreciates its long-standing partnership with America's 
Conservation Districts, the term ``public agency'' adequately includes 
Conservation Districts and all other subdivisions of government, 
without the need to identify specific partners. Therefore, no change 
has been made to this definition.

Section 652.2 Applicability

    Comment: NRCS received 1 comment regarding the applicability 
section of the Interim Final Rule. The commenter requested NRCS to 
identify specific categories of technical services since the 
designation of categories is important for the TSP and educational 
institutions to understand the educational programs needed to support 
the TSP effort.
    Response: NRCS agrees that specificity may help clarify educational 
requirements for TSPs and assist educational institutions in developing 
courses to help TSP meet those requirements. However, specific 
categories are more appropriately described in TechReg. Consequently, 
only references to general categories appear in the final rule.

Section 652.3 Administration

    Comment: NRCS received a total of 88 comments on Sec.  652.3, 
Administration. In particular, NRCS received 1 general comment on the 
section as a whole, 6 comments on paragraph (a), 4 comments on 
paragraph (b), 28 comments on paragraph (c), and 49 comments on 
paragraph (e).
    The one general comment viewed the privatization of the provision 
of technical services in theory as acceptable, but felt that there was 
a large amount of training, oversight, and administration requirements 
related to the implementation of programs that only NRCS could provide 
adequately.
    Response: NRCS agrees that NRCS must provide oversight of the 
technical services provided under the programs for which it has been 
delegated responsibility. Additionally, there exist several activities 
requiring technical expertise, such as the assigning of ranking points 
to a particular program application for enrollment, which are tied to 
program administration, and thus are inherently NRCS responsibilities.
    Comment: Paragraph (a) of Sec.  652.3 of the Interim Final Rule 
simply sets forth the statutory provision that the Department of 
Agriculture will provide technical services to participants, or at the 
option of the participant, through a technical service provider. One 
commenter recommended that there should be incentives, such as awarding 
additional points to landowners that either participate in or select 
TSPs that participate in watershed groups or other collaborative 
conservation partnerships.
    Response: NRCS believes that these matters would best be handled 
under program ranking criteria, and are not appropriate considerations 
for the TSP rule. Therefore, no change to the TSP interim final rule 
has been made in response to this comment.
    Comment: One commenter requested that NRCS make it clear to 
participants that they may choose either NRCS or a TSP to provide 
needed technical assistance in the delivery of programs.
    Response: NRCS will continue to provide outreach to its 
participants and potential sources of technical services to ensure that 
participants are aware of their options under the TSP provisions.
    Comment: One Commenter supported the provisions but recommended 
NRCS build a strong TSP infrastructure and support new, strategic 
investments to develop a cadre of qualified professionals in both the 
public and private sectors. This Commenter also recommended that NRCS 
develop adequate tools and use a multi-disciplinary approach to provide 
technical assistance.
    Response: NRCS recognizes the need to develop a cadre of 
professionals equipped with adequate tools within both the NRCS 
workforce and Technical Service Providers. NRCS also supports the use 
of a multi-disciplinary approach and encourages collaboration between 
technical service providers to ensure comprehensive planning assistance 
is provided to landowners. As clarified by the March 24, 2003, 
amendment to the Interim Final Rule, technical service providers may 
subcontract for any additional support they need to deliver the 
necessary services to participants. However, NRCS has very limited 
authority to expend funds for training of professionals other than for 
its own personnel. As described later, NRCS will make its staff 
available to the training efforts developed by other entities.
    Comment: One Commenter recommended that technical assistance 
requests should be offered to the private sector before NRCS or other 
public agencies so that private organizations could screen and select 
the projects most suitable for them. The Commenter also recommended 
that participants be required to seek three bids and select the lowest 
bid, and require that bids that are either too high or too low be 
rejected. A different Commenter agreed that NRCS staffing levels should 
not be increased, and that certified crop advisers, as TSPs, should 
meet the conservation demand.
    Response: NRCS policy supports the authorizing statute that 
participants select technical service providers, whether they are 
public or private entities. NRCS does not impose a three-bid 
requirement upon its participants because the Agency believes it 
creates an unreasonable administrative burden on them. As discussed in 
its payment section, NRCS is updating the process for establishing Not-
To-Exceed (NTE) cost information. This update should provide better 
information regarding the NRCS costs related to the delivery of 
technical services. The Agency believes that these updated rates should 
be more reflective of costs incurred by technical service providers. 
New NTE rates should allow participants to access quality technical 
assistance from either public or private sources while exercising their 
right to choose who delivers the service to them. NRCS does not believe 
it is appropriate to impose on participants one type of technical 
service provider over another.
    Comment: Paragraph (b) of Sec.  652.3 provides that the Chief, 
NRCS, shall direct and supervise the administration of the rule. One 
commenter suggested that NRCS extend the comment period.
    Response: NRCS provided an initial 90-day comment period, which was 
then extended for an additional period of time. NRCS received 1350 
comments from over 350 entities and believes that it has received a 
broad spectrum of comments on all aspects of the rule. Therefore, NRCS 
does not intend to re-open the comment period.
    Comment: Another commenter requested that NRCS keep the TSP process 
simple and free of paperwork, and to keep the approval process 
localized and streamlined. This same commenter recommended that delays 
in payment should not be tolerated and that complaints of unfairness 
handled quickly and in an un-biased manner. Another commenter stated 
that the rule was silent on the format of the

[[Page 69454]]

paperwork associated with the development of conservation plans and 
contracts, noting that NRCS field offices utilize geographic 
information systems and specially-developed software in the completion 
of their work.
    Response: NRCS agrees that it is important to minimize paperwork 
and ensure an efficient process for reimbursing participants for 
technical services obtained from TSPs. The Agency also agrees that it 
is critical to the success of the program to ensure that all complaints 
are handled fairly and expeditiously as possible. NRCS has instituted 
TechReg as an electronic means for TSP to obtain certification, and is 
instituting other e-government provisions in order reduce the paperwork 
burden on its participants. These e-government efforts provide a 
mechanism through which NRCS will streamline applications and payments. 
NRCS is working collaboratively with partners to develop a means to 
allow technical service providers to access conservation planning 
information currently available to NRCS field personnel. TSPs will have 
an opportunity to gain analogous access to the same reference 
information, planning tools including forms, and reporting systems as 
Department employees currently have.
    Comment: One commenter stated that it may be necessary for NRCS and 
the Department to provide national leadership to ensure successful 
adoption of the TSP policy by the public and by NRCS employees in all 
the regions and States. The commenter reflected that the differences in 
States should not create significant inconsistencies in policy 
implementation.
    Response: NRCS believes that the use of TSPs will be more readily 
accepted in some States than others. While there has been only one year 
of implementation of TSP policy, some regional differences have emerged 
with the Midwest region of the country utilizing TSPs to a much greater 
extent than other parts of the country. However, NRCS is committed to 
promoting the use of technical service providers throughout the 
country, and has established a National framework, sensitive to State 
and local requirements. NRCS is also committed to ensuring that NRCS 
Regional and State personnel seek every opportunity to utilize 
qualified technical service providers in the delivery of its 
conservation programs.
    Comment: Paragraph (c) of Sec.  652.3 consists of several 
paragraphs. In order to streamline its response, NRCS will address the 
comments by topics within each paragraph comprising Sec.  652.3(c). 
Several comments expressed concern regarding the unprecedented nature 
of the TSP provisions and recommended several approaches to ensure that 
NRCS had the requisite advice and framework to ensure successful 
implementation of the TSP provisions. One approach included the 
establishment of a Federal Advisory Committee to provide NRCS advice. 
Another approach suggested that NRCS conduct State listening sessions 
and surveys of conservation needs to guide delivery of technical 
assistance.
    Response: NRCS agrees with comments that success lies in 
cooperation between all parties involved in TSP, but does not believe 
that a Federal Advisory Committee is needed, especially since adequate 
opportunities for advice and input exists through the public comment 
period under rulemaking and participation in State Technical 
Committees. State Technical Committees provide guidance to State 
Conservationist on a broad range of conservation issues, and entities 
interested in participating on a State Technical Committee should 
contact the State Conservationist.
    Comment: One commenter encouraged NRCS to anticipate needed 
technical assistance and develop contracts with organizations based on 
competitive processes that focus primarily on quality.
    Response: NRCS State Conservationists, with the advice of State 
Technical Committees, determine natural resource priorities within the 
State and develop strategies for delivery of conservation programs to 
meet these resource needs. Through this assessment, State 
Conservationists anticipate where workload demand necessitates the 
increased use of technical service providers to meet this demand and 
may choose to enter into contracts and cooperative agreements with 
qualified technical service providers. NRCS also balances its own 
obligation to administer its conservation programs effectively while 
ensuring that sufficient funds are available to support participants' 
option to select individual technical service providers. NRCS will 
enter into written agreements with participants wishing to hire TSPs in 
accordance with the priorities identified by the State 
Conservationists.
    Comment: Paragraph (c)(3) of the Interim Final Rule stated that 
NRCS would establish policies, procedures, and guidelines regarding the 
certification and decertification of technical service providers. NRCS 
received 4 comments on this paragraph, 2 of which expressed a need for 
the procedures to be in ``plain English.'' One comment indicated that 
State Technical Committees should provide leadership in fashioning TSP 
initiatives, and one comment indicated that NRCS should focus on 
training.
    Response: NRCS agrees that the language used to explain its 
procedures should be clear and concise, and will work to simplify the 
guidance made available through TechReg. As described earlier, NRCS 
believes the State Technical Committees can provide valuable advice on 
the implementation of TSP initiatives and encourages interested parties 
to attend State Technical Committee meetings. NRCS concurs with the 
comment on training and addresses this concern fully in the discussion 
on training under Sec.  652.21.
    Comment: Paragraph (c)(4) of the Interim Final Rule stated that 
NRCS will certify, decertify, renew certification, and recertify 
technical service providers. NRCS received 4 comments on this 
paragraph, all of which encouraged NRCS to work with existing and 
appropriate certification programs, and recommended that the 
certification system be stringent enough to ensure high quality 
technical service providers. However, these commenters expressed 
concern that NRCS not place itself in direct competition with private 
sector programs, but instead rely almost exclusively upon other 
entities' certification programs.
    Response: NRCS agrees that there are several high quality 
certification programs in the private sector and has entered into 
Memoranda of Understanding with several of these certifying 
organizations. However, the statute clearly assigns responsibility to 
NRCS for establishing the criteria for qualifications that technical 
service providers must meet. NRCS is committed to working with all 
partners to ensure that certification programs meet established 
criteria. NRCS is not going to utilize one organization's certification 
as applicable to all categories because an organization's certification 
process is specific to the mission of that particular organization. 
NRCS must focus on the certification criteria that best meet the 
resource needs and issues addressed under its publicly-funded 
conservation programs.
    NRCS values the assistance provided by recommending organizations 
through Memoranda of Understanding to evaluate the qualifications of 
applicants and make recommendations for certification. However, NRCS 
also believes that the TSP certification system must have an avenue for 
qualified individuals and entities to become certified technical 
service

[[Page 69455]]

providers, whether or not such individuals or entities are associated 
with a particular certifying organization or for disciplines where a 
certifying organization does not exist. NRCS believes that the 
TechReg's certification process, combined with a credible quality 
assurance and verification process, provides a streamlined process for 
such technical service providers without competing with private 
professional organizations.
    Comment: Paragraph (c)(5) of the Interim Final Rule stated that 
NRCS will encourage the development and availability of training 
opportunities. NRCS received 4 comments on this paragraph, 3 of which 
stressed that additional training should be based on need and built 
into a continuing education system of a certification program. One 
commenter supported the use of NRCS personnel and materials for 
training technical service providers.
    Response: NRCS recognizes the need for development of training and 
addresses this concern fully in the discussion on training under Sec.  
652.21.
    Comment: Paragraph (c)(6) indicated that NRCS would track payment 
and accomplishment data related to technical services delivery. NRCS 
received 1 comment to this paragraph, expressing concern that the 
technical services provided may not be done in the most cost-effective 
way. This commenter requested that NRCS indicate the methods it would 
utilize when NRCS seeks to acquire technical services from non-Federal 
sources.
    Response: NRCS recognizes that there is inevitably some 
inefficiency in offering new opportunities to deliver technical 
assistance through technical service providers, but believes that the 
framework in place will help minimize such inefficiency by encouraging 
highly qualified technical service providers to work with NRCS 
conservation participants. NRCS will utilize the most appropriate tool, 
whether that be contracts, cooperative agreements, or contribution 
agreements, to achieve the most efficient delivery of service to the 
public.
    Comment: Paragraph (c)(7) states that NRCS will implement a quality 
assurance process to evaluate technical service provided by Technical 
Service Providers. NRCS received one comment regarding this issue. The 
commenter stated that NRCS should develop a system of compensation and 
job descriptions on a component basis that provides for incentives for 
quality not just quantity. The respondent also emphasized that 
conservation technical assistance work is based significantly on 
consulting with landowners which may not correlate directly to 
obligating conservation program funds.
    Response: NRCS concurs with these comments, working with private 
landowners requires regular, authentic communication to foster a 
trusting relationship. NRCS has developed more detailed, practice-
specific statements of work for technical service providers' use. These 
working documents carefully describe required components and 
documentation of work completed to be submitted for payment. The use of 
these templates, available through the Field Office Technical Guides, 
should also guide some discussion between landowners and technical 
service providers and should lead to improved communication and 
planning.

Section 652.3(e)

    Comment: Section 652.3(e) of the Interim Final Rule stated that the 
Department would evaluate the terms and conditions of existing 
agreements with technical service providers to ensure they were 
consistent with the regulation. NRCS received 25 comments that 
expressed concern about the historic relationship NRCS has with 
conservation districts and 7 comments that supported NRCS re-evaluating 
historic and existing agreements to ensure there were no conflicts of 
interest.
    Response: NRCS believes that it addressed these concerns in its 
second amendment to the Interim Final Rule, published July 9, 2003, 
when it provided for a limited waiver to the certification requirements 
for public entities who enter into contribution agreements with NRCS to 
provide technical services. NRCS described in detail the long-standing, 
productive partnership NRCS has with other public agencies, especially 
conservation districts. NRCS also described the cooperative working 
agreements that it has with conservation districts and its desire to 
continue this relationship and approve district employees to provided 
technical services through these agreements. These agreements set forth 
criteria and ensure that they are met.
    As described in the amendment, if NRCS contributes financial 
resources to a partnership with a conservation district, such a 
relationship is consummated through a contribution agreement and the 
conservation district must contribute at least 50 percent of the 
resources needed for implementing the contribution agreement. Under the 
provisions of the Interim Final Rule amendment, public agencies that 
wanted to compete for contracts or cooperatives agreements for the 
delivery of technical services had to become certified in accordance 
with the certification process set forth in the Interim Final Rule. 
However, this final rule changes the certification requirement for all 
entities, whether a public agency or private company, when such an 
entity seeks to enter into an agreement or contract with NRCS to 
provide technical services.
    As described in the preamble discussion under Sec.  652.6 of this 
final rule, when obtaining technical services directly, NRCS will 
utilize qualification and performance criteria in a procurement 
contract or cooperative agreement, rather than the certification 
process under Subpart B, to select qualified technical service 
providers. NRCS will comply with applicable rules of competition under 
Federal acquisition and assistance authorities in its selection of 
technical service providers under procurement contract or cooperative 
agreement. The NRCS contracting officer is responsible for ensuring 
that the procurement process is fair and competitive. The impetus for 
this change is explained in this preamble's discussion of Sec.  
652.6(b).
    Comment: One commenter said that existing agreements should be 
allowed to run their course without interference.
    Response: NRCS honored its obligations under existing contracts and 
agreements. However, NRCS reviewed and modified many framework 
agreements that did not involve specific obligation of funds to ensure 
that the terms and conditions of the agreements were consistent with 
the Interim Final Rule and the two amendments. NRCS also did not enter 
into modifications or renewals of existing documents that obligated 
funds unless the terms and conditions were consistent with the Interim 
Final Rule and the two amendments.
    Comment: One commenter suggested that NRCS create a highly 
pragmatic, two-tiered approach with public entities or non-profit 
organizations providing comprehensive technical assistance, and 
private, for-profit vendors providing specifically-defined technical 
assistance.
    Response: As described more fully below in the discussion about 
changes to Sec.  652.6, NRCS will utilize a two-prong approach similar 
to that recommended by the commenter. However, NRCS does not believe 
that the profit motive of the TSP is the determining factor in 
selecting a TSP for comprehensive technical assistance. NRCS believes 
that the TSP needs the Agency has in the implementation of the 
conservation programs differs from the TSP needs of a participant 
meeting program requirements. In particular,

[[Page 69456]]

NRCS distinguishes the qualification evaluation process used for TSPs 
hired directly by participants and TSPs hired directly by NRCS. NRCS 
believes that the selection process through the existing legal 
framework for Federal acquisition and cooperative agreement activities 
ensures that the agency obtains qualified technical services from 
vendors and partners for the types of technical services the Agency 
needs, while the certification process set forth under this final rule 
will ensure that participants obtain qualified technical services they 
need.
    Comment: Two commenters expressed concern over the accelerated time 
schedule for implementation of the TSP provisions while another 
commenter recommended that a Federal Advisory Committee should be 
established to assist with the new initiative. One commenter stated 
that TechReg was an effective mechanism for implementing TSP 
provisions.
    Response: NRCS believes that the time schedule set forth in the 
Interim Final Rule was warranted by the need to meet the additional 
technical services demand. As mentioned earlier in this preamble, NRCS 
does not intend to establish a Federal Advisory Committee at this time, 
and recommends that interested parties provide input to NRCS through 
the State Technical Committees. Through adjustments made in the two 
amendments to the Interim Final Rule and in this final rule, NRCS 
believes it has demonstrated flexibility to meet effectively the new 
issues that have arisen from this unprecedented initiative for 
expanding the availability of technical services to America's farmers 
and ranchers. NRCS will continue to seek sensible and innovative 
improvements to the implementation of these provisions.
    Comment: One commenter stated that NRCS should not compete with 
private sector services, while another commenter expressed support for 
Department employees providing technical services. Three commenters 
stated that technical service providers should supplement rather than 
replace the base delivery of technical services.
    Response: NRCS policy encourages the expansion of technical 
services provided by all sources. The not-to-exceed payment rates, 
established under this part, are based upon the direct and indirect 
costs to NRCS for providing technical services, and thus help minimize 
cost differences between NRCS and non-NRCS sources of technical 
services. Additionally, private, commercial sources may be in a better 
position to provide a participant with more timely services.
    Comment: Two commenters expressed approval for NRCS and partner 
technical service delivery in New York and 2 commenters expressed 
approval for NRCS and partner technical service delivery in North 
Carolina. All 4 comments commended NRCS'' utilization of private and 
public sector partners. One commenter, however, felt that NRCS should 
empower its field office employees more in deciding the technical 
service needs of participants.
    Response: NRCS appreciates the continued support it receives for 
its delivery of technical services to participants, especially from its 
field office professionals. NRCS is committed to stimulating the 
private sector technical service provider industry through its policies 
and partnerships , and NRCS believes that participants will benefit 
greatly from having a broader choice of technical service providers. 
NRCS contends that it has empowered its field offices through TSP by 
providing them with another tool to meet their conservation goals.

Section 652.4 Technical Service Standards

    Comment: In the Interim Final Rule, Sec.  652.4 establishes the 
technical service standards that technical service providers must meet 
to receive payment for their services. NRCS received 142 comments on 
the provisions contained within this section. In general, several 
commenters expressed concern that TSPs are not subject to the Freedom 
of Information Act and Privacy Act protections against disclosure of 
participants' proprietary information.
    Response: The Freedom of Information Act, the Privacy Act, and the 
confidentiality provision of the Food Security Act of 1985, 16 U.S.C. 
3844, are Federal statutes that promote an open Government with 
recognition of protections for private citizens, and thus these 
statutes only apply to records maintained by the Federal Government. 
For these reasons, NRCS again cautions participants to obtain necessary 
assurances regarding the confidentiality of information that is 
provided to the TSPs they hire.
    Section 3844 of Title 16 of the United States Code (the 
``confidentiality provision'') addresses the disclosure of certain 
information provided to the Department or a contractor of the 
Department by a participant for the purposes of providing the 
participant technical or financial assistance under a conservation 
program of the Department. In particular, the Department may release 
certain information obtained from a participant to a technical service 
provider working in cooperation with the Department if the disclosure 
of such information is needed in providing technical or financial 
assistance to the participant. By statute, the technical service 
provider hired by the Department is prohibited from disclosing the 
information to anyone outside the Department, and NRCS incorporates 
such prohibition in the terms of its contracts and agreements.
    However, the confidentiality provision does not authorize the 
Department to disclose such information to a technical service provider 
hired by a participant unless the participant consents to such 
disclosure. Therefore, Sec.  652.5 notifies a participant that NRCS 
will not disclose information in an NRCS case file to a technical 
service provider hired by the participant unless the participant 
provides such written authorization.
    Comment: Section 652.4(a) of the Interim Final Rule required that 
the technical services provided by technical service providers meet all 
applicable NRCS standards and specifications. NRCS received 3 comments 
on this provision, including 2 commenters expressing support for high 
standards and 1 commenter expressing concern that the State-specific 
nature of NRCS standards and specifications will cause administrative 
burdens to TSPs who wish to provide technical services in several 
different States.
    Response: NRCS developed its standards and specifications based 
upon its lengthy experience with local resource conditions and believe 
they are the most appropriate standards for the conservation programs 
it administers.
    Comment: Section 652.4(b) of the Interim Final Rule specified that 
the Department must approve all new technologies and innovative 
practices prior to a technical service provider initiating technical 
services for those technologies and practices. NRCS received 47 
comments on this provision. Three commenters expressed general support 
for this provision while 3 commenters expressed concern that the 
requirements would be too burdensome and restrictive. One commenter 
agreed that all projects should meet NRCS standards, but believed that 
TSPs should be able to utilize more innovative methods than might exist 
in NRCS manuals, handbooks, or other references. NRCS received 9 
comments that recommended that NRCS establish a review and approval 
process for innovative technologies and practices. NRCS also received 
29 comments that the rule should encourage technical service providers 
to develop innovative

[[Page 69457]]

practices that promote sustainable agriculture. One commenter requested 
further clarification of what constituted an innovative technology or 
practice.
    Response: While the perspectives of these commenters are 
appreciated, NRCS must first ensure the integrity of conservation 
program implementation and that the practices installed and funded by 
public investment are technically sound and cost effective. Throughout 
its history, NRCS, and its predecessor the Soil Conservation Service, 
have internally developed and tested standards and specifications that 
provided safe, reliable, and effective conservation practices. These 
practice standards are performance-based in that they encourage the use 
of innovative treatments by establishing performance criteria rather 
than prescriptively describing the specific treatment. As new 
technologies have been proven through research and demonstration 
efforts, NRCS has adopted many new technologies and made them available 
for implementation through its interim standards process. The interim 
standards process allows for State, regional, and national testing of 
the application and its performance for subsequent adoption into the 
Field Office Technical Guides. For these reasons, NRCS believes that it 
balances reliability and innovation for use in its publicly-funded 
conservation programs. Therefore, NRCS requires under its conservation 
programs that practices meet NRCS standards and specifications prior to 
making payment for their installation. NRCS made a change to Sec.  
652.4(b) in the final rule to clearly state this requirement.
    Additionally, NRCS has received authorization in the 2002 Farm Bill 
to implement the Conservation Innovation Grants program (CIG). CIG, 
authorized under the Environmental Quality Incentives Program (EQIP), 
is a voluntary program intended to stimulate the development and 
adoption of innovative conservation approaches and technologies while 
leveraging Federal investment in environmental enhancement and 
protection, in conjunction with agricultural production. Under CIG, 
EQIP funds are used to award competitive grants to non-Federal 
governmental or non-governmental organizations, Tribes, or individuals. 
NRCS published a Request for Proposals in the Federal Register on March 
29, 2004 (69 FR 169400), announcing the availability of up to $15 
million of CCC funds for the implementation of CIG in FY 2004. NRCS 
expects that the CIG-funded projects will lead to the transfer of 
conservation technologies, management systems, and innovative 
approaches into NRCS technical manuals or guides, or to the private 
sector. NRCS believes CIG should fund the development of innovative 
practices related to sustainable agriculture.
    Comment: Section 652.4(c) requires that technical service providers 
warrant in writing that the particular technical service provided meets 
several requirements, including compliance with all applicable Federal, 
State, Tribal, and local laws and incorporates, where appropriate, low-
cost alternatives that meet the objectives of both the program and its 
participants. NRCS received one comment expressing concern that 
technical service providers must warrant that practices meet all 
requirements even though there may exist conflicts between the various 
legal requirements.
    Response: Technical service providers are responsible for knowing 
the legal and regulatory framework under which they are providing 
services. While there may exist overlapping and varied regulatory 
standards under applicable law, a professional experienced in providing 
technical services will be aware of the appropriate resolution to these 
potential conflicts of law.
    Comment: NRCS also received 5 comments about low-cost alternatives, 
with 1 commenter expressing general support for the provision, 3 
commenters expressing concern that technical service providers will not 
promote low-cost alternatives, and 1 commenter requesting clarification 
on how low-cost alternatives that are not currently in the FOTG might 
be incorporated.
    Response: There often exist several approaches to solve a resource 
issue under the NRCS conservation programs. The NRCS conservation 
planning procedures manual provides guidance on appropriate planning 
methods, including the development of alternatives to be presented to 
participants to address their resource concerns. These alternative 
approaches are supported by the standards and specifications available 
to resolve the issue. However, NRCS agrees that the concept of what 
constitutes the ``low-cost alternative'' is problematic in 
implementation, especially since the choice of alternatives belongs to 
the participant based upon their conservation needs and which 
alternative best addresses the needs of the resource. Therefore, in 
this final rule, NRCS modified the language to require that technical 
service providers incorporate alternatives that are both cost-effective 
and appropriate to address the resource issues.
    Comment: Section 652.4(d) of the Interim Final Rule required that 
technical service providers must assume all legal responsibility for 
the technical services provided, and must indemnify and hold the 
Department and the participant harmless for injuries arising from 
negligent or wrongful acts arising from the technical services 
provided. NRCS received 58 comments on this provision. The breakdown of 
the comments is as follows: 15 commenters expressed support for holding 
technical service providers liable but requested that clarification be 
provided on several aspects of liability; 9 comments opposed the hold 
harmless provision as a barrier to TSP participation; 14 comments 
expressed concern for potential liability of the individuals and 
institutions who provide training to technical service providers; 10 
comments believed that NRCS should require technical service providers 
to have liability insurance; 1 commenter recommended that NRCS should 
provide liability insurance to technical service providers; 1 commenter 
inquired regarding who would ensure that standards and specifications 
were being met; 4 commenters felt that the liability provisions did not 
adequately protect participants; 1 commenter expressed concern about a 
public agency assuming broad liability; and 4 comments believed that 
NRCS should share in the liability if the technical services met NRCS 
standards and specifications.
    Response: NRCS recognizes that the terminology used in the Interim 
Final Rule may have inadvertently caused problems in the ability for 
technical service providers to obtain liability insurance. The terms 
``indemnify'' and ``warrant'' are used throughout the Interim Final 
Rule. Professional consultants find these terms problematic because a 
warranty or guarantee of their work could negate their professional 
liability coverage.
    While technical service providers need to be held accountable for 
the work they do, the current regulatory language needs to more clearly 
state the extent of the liability that technical service providers 
assume when they provide technical services under this part. Of 
particular concern to many commenters was that technical service 
providers might be held liable for an overall project when they were 
not involved in all phases of its technical services delivery.
    Therefore, NRCS has revised the liability language in Sec.  
652.4(d) to state more clearly that technical service providers assume 
legal responsibility for the technical services they provide. In 
response to the commenters' concerns,

[[Page 69458]]

the new language does not require blanket indemnification. NRCS has not 
required in this regulation that technical service providers submit to 
NRCS proof of liability insurance. Rather, NRCS will incorporate 
appropriate bonding and insurance requirements in its contracts or 
agreements with technical service providers and recommends that 
participants consider such matters when they hire their own technical 
service providers.
    NRCS did not address in this regulation all the other potential 
liable parties if a project fails as a result of negligence or wrongful 
acts because such matters are beyond the scope of this regulation. Tort 
law provides the relevant framework for addressing such issues.
    Comment: Section 652.4(e) of the Interim Final Rule stated that the 
Department will not be in breach of any program contract or agreement 
for not making payment for technical services that do not meet NRCS 
program requirements. NRCS received 3 comments to this provision. All 3 
of the commenters expressed support for the provision, but 2 of the 
commenters provided alternative language.
    Response: NRCS believes that the current language best captures the 
intent of the provision, and has made no changes in response to these 
comments.
    Comment: Section 652.4(f) of the Interim Final Rule confirms that 
participants are responsible for complying with the terms and 
conditions of the program contract or agreement. NRCS received 4 
comments on this provision. Three of the commenters expressed support 
for the provision, but the fourth commenter expressed concern that the 
language could be interpreted to attach liability to the participant 
for something that the technical service provider should assume sole 
responsibility.
    Response: NRCS understands the concern expressed by this commenter. 
However, the technical service provider is not a party to the program 
contract or written agreement between NRCS and the participant, and 
therefore, the participant is responsible for compliance with the 
agreement. When the participant hires TSPs to assist in meeting the 
participant's obligations under the program agreement, the participant 
should incorporate their expectations of the contracted service 
provider, including fulfilling program requirements, into their 
contract with the provider of the technical service.
    Comment: Section 652.4(g) of the Interim Final Rule requires TSPs 
to report in the NRCS accomplishment tracking system the appropriate 
information associated with the technical services provided. NRCS 
received 16 comments on this provision. Five commenters requested 
additional information about how to access the accomplishment tracking 
system. Three commenters expressed the need for such a tracking system. 
Four commenters did not support requiring TSPs to use the 
accomplishment tracking system because it would be excessive, 
burdensome, and serve as a significant disincentive to TSP 
participation. Two commenters expressed concern that projects with 
multiple TSPs may result in redundancy in reporting. One commenter 
expressed concern that NRCS maintain the confidentiality of 
participant's proprietary information. One commenter requested that 
NRCS clearly identify the differences between outcomes and output, and 
that NRCS be able to use the tracking system to determine clearly 
accomplishments and areas needing improvement.
    Response: It is essential to track performance information related 
to the implementation of NRCS' conservation programs, including the 
extent and type of technical services provided to conservation 
participants, to ensure the public investment in conservation is being 
well-spent and conservation objectives achieved. NRCS agrees that it is 
important to distinguish outcomes (i.e. improved water quality) and 
outputs (i.e. number of acres treated), but recognizes that there is 
overlap in these two concepts. NRCS has modified its performance 
tracking system to distinguish more clearly between the two concepts, 
stream-line data input, and provide a user-friendly system available to 
NRCS personnel and technical service providers. NRCS recognizes the 
challenges between balancing client privacy and accessibility to 
information contained within NRCS client files needed to develop 
appropriate planning and design products. As discussed more fully above 
in the discussion about the confidentiality provision of the 2002 Farm 
Bill, NRCS maintains the confidential nature of participant information 
and will only disclose information to a third party with the written 
agreement of the participant or in accordance with Federal disclosure 
laws. The confidentiality provision does allow NRCS to distribute 
aggregated performance information.

Section 652.5 Participant Acquisition of Technical Services

    Section 652.5 of the Interim Final Rule stated that participants 
may obtain technical assistance directly from the Department or from a 
TSP. NRCS received 180 comments on this section of the rule. Two 
comments were general comments, one commenter stating that good faith 
exceptions that apply to participants do not apply to technical service 
providers, and the second commenter suggesting that the TSP provisions 
will work only if NRCS allows private sector technical service 
providers to determine the work load that they can handle first. Most 
of the comments, 120 of the 180 received, were responses to the NRCS 
request for comments on how NRCS should determine the payment rates for 
technical service providers. NRCS has organized its response to these 
comments by topic, as set forth below.
Payment Rates
    Comment: Sixteen distinct perspectives summarized the 120 comments 
NRCS received related to payment rates:
    <bullet> Thirty-five of the commenters expressed approval for a 
not-to-exceed (NTE) payment approach utilizing NRCS cost as the basis 
for the maximum rate to be paid. However, most of the comments 
suggested that NRCS incorporate the ``true'' cost to NRCS to provide 
technical services, including overhead and operating expenses such as 
utilities and rental space.
    <bullet> Five commenters requested that the not-to-exceed rates 
should incorporate an element of profit since private sector business 
need to make a profit to survive and that public sector entities 
benefit from having the public pay overhead costs.
    <bullet> Seven commenters expressed concern that the costs will be 
difficult to establish and that the payment rates should be set at the 
cost charged for services in the private sector.
    <bullet> Twelve commenters recommended utilizing both private and 
public sources of cost data to establish payment rates.
    <bullet> Nine commenters expressed opposition to a flat rate while 
an additional five commenters expressed opposition to the establishment 
of a National price that did not take into account State-level 
differences in cost.
    <bullet> Four commenters recommended that NRCS introduce a voucher 
system.
    <bullet> Three commenters recommended that NRCS establish a fee 
structures based on a per acre rate or per plan rate.
    <bullet> Three commenters advised against using a lowest-cost basis 
for acquiring professional services.
    <bullet> Three commenters recommended that NRCS provide incentive 
payments for disadvantaged groups.
    <bullet> Three commenters recommended that NTE rates as cap for the 
acceptable

[[Page 69459]]

bid obtained pursuant to NRCS acquisition process.
    <bullet> Three commenters recommended that payments be based on 
specific practices or tasks.
    <bullet> Three commenters expressed concern that NRCS would pay for 
services that were once provided to participants at no charge by 
private sector service providers and additionally discourage volunteer 
service.
    <bullet> Three commenters recommended that NRCS utilize a two 
tiered payment process, where the payment rate would be based (1) upon 
a percentage of the total project cost and (2) upon a percentage of a 
not-to-exceed rate.
    <bullet> Three commenters recommended utilizing an hourly rate with 
locally-set caps on the amount that can be paid.
    <bullet> One commenter recommended that the payment rate should 
incorporate a fee to compensate general contractors for overseeing the 
work activities of non-certified technical service providers.
    <bullet> One commenter wanted to be assured that NRCS could be 
chosen as the technical service provider because of the NRCS proven 
record of providing quality technical services.
    Response: NRCS appreciates the thoughtful recommendations it 
received in response to its request for comments on this issue which is 
key to the success of the TSP provisions. The overriding goal for NRCS 
is to encourage the highest quality technical services for its 
participants with the most cost-effective expenditure of public 
dollars. Consequently, NRCS will base payment rates on the NRCS cost to 
provide a particular service. This cost will be reflected in the NTE 
rate for the technical service related to a particular conservation 
practice. NRCS used NTE rates in its FY 2003 implementation of TSP, and 
has made adjustments in order to better incorporate the complete cost 
for NRCS to provide a particular service.
    For FY 2004, NRCS developed NTE rates from NRCS` Technical 
Assistance Cost for Conservation Practice (TACCP) database. It contains 
estimates for time required for each skill necessary to complete the 
four tasks of planning, design, installation, and checkout, associated 
with each conservation practice. The time by skill estimates are then 
applied to an NRCS staff cost per hour plus overhead for each needed 
discipline, to derive the estimates of the total technical assistance 
cost for a typically sized practice task. Then an NTE rate for a 
specific task is derived by dividing that total task costs by the 
reported typical job size (in acres, feet or in Animal Units). The 
current TACCP includes personnel salary and benefits by discipline plus 
an overhead rate equal to about 26% of the associated personnel cost 
incurred from field offices up to the state level.
    The rates are based on typically sized conservation practice jobs 
within 214 time team regions (TTRs) across the country. Each typically 
sized conservation practice job reflects the natural resource, 
regulatory, social and economic conditions that exist within each of 
TTRs. NTE rates are established for each of the four major conservation 
practice tasks, namely planning, design, installation and checkout. NTE 
rates have been established for most of the 163 conservation practices 
being applied by NRCS.
    If special conservation practice situations arise that have unique 
or unusual circumstances, NRCS would be expected to incur higher costs. 
Therefore, State Conservationists are authorized to change NTE rates 
accordingly, with justification and documentation. The Deputy Chief for 
Science and Technology recently issued a National Bulletin providing 
conditions and a process for State Conservationists to justify 
exceptions to the NTE rates.
    NRCS requested sources of technical services and pricing data for 
past technical services provided through a FedBizOpps advertisement. 
NRCS continues to make efforts to identify sources and receive 
information on current market prices from individuals and entities 
providing conservation technical assistance. The request for cost data 
posted on FedBizOpps allows users to submit these pricing data online. 
NRCS intends to use this pricing data to evaluate payment rates for 
technical service providers.
    In its March 24, 2003 amendment to the Interim Final Rule and in 
response to the public comments received, NRCS considered several other 
options in determining how to establish the payment rate for technical 
service. This rulemaking is setting forth that policy decision. One 
option considered was for NRCS to base technical service payments upon 
a flat rate. Under this option, NRCS would pay a flat rate for each 
project. For instance, regardless of what a technical service provider 
might charge for a project, NRCS would pay a participant $4,000, 
whether the work impacted 10, 100 or 1,000 acres. However, NRCS has 
determined that such an approach would not adequately address the 
actual cost for technical services on any particular project. NRCS 
believes that participants would have difficulty obtaining technical 
services for small or more complex projects because the actual cost for 
the design could exceed the flat rate. Additionally, the flat rate 
would not encourage competition in the market place because it does not 
encourage cost-efficiency between potential technical service 
providers. NRCS believes the market would tend to shift towards the 
flat rate rather than encouraging more efficient or innovative 
delivery. Therefore, NRCS did not adopt this option.
    NRCS also considered soliciting bids and selecting the low cost 
technical service providers for participants for specific services 
within specific geographic areas. The Department did not adopt this 
method as part of the rule because it would force the participant to 
select only the technical service provider identified by Department 
rather than allowing the participants to choose their preferred 
qualified technical service provider. In addition, the Department 
believes that this alternative method would create a substantial 
workload for the Agency because of the need to develop and administer 
contracts, especially given the variety and scope of technical services 
needed.
    NRCS also considered soliciting bids for all technical service 
needs on a case by case basis and contract directly on behalf of 
participants with each technical service provider on each technical 
service needed. The Department did not adopt this method as part of the 
rule since this method would also limit the available choices of 
technical service providers to a participant and would create a similar 
significant administrative workload for the Agency.
    In considering whether to continue using the NTE rates as a basis 
for TSP reimbursement, NRCS has determined that the NTE rates as 
described above provides the greatest opportunity for the marketplace 
to provide input on the costs of technical services, and it provides 
maximum flexibility for participants to choose their technical service 
provider.
    NRCS believes that the current regulatory framework provides 
adequate flexibility to NRCS to adjust payment rates in response to 
additional information obtained from internal and external sources of 
cost data. Therefore, no changes were made to this regulatory language 
in this provision of the rule.
Section 652.5(a)
    Comment: Section 652.5(a) of the Interim Final Rule restated the 
statutory provision that a participant may obtain technical assistance 
from the Department, or at the participant's option, from a certified 
technical services provider. NRCS received 2

[[Page 69460]]

comments to Sec.  652.5(a). One commenter stated that the provision 
should not be written as an entitlement without some qualifying 
statement about whether certified TSPs were available in the particular 
geographic region. The other commenter suggested replacing the term 
from ``participant'' to ``producer.''
    Response: The ability for a participant to obtain technical 
services from a certified technical service provider depends upon 
whether there exist certified technical service providers in the 
geographic area and for the particular technical services. Therefore, 
NRCS has added the term ``if available'' to the language of Sec.  
652.5(a).
    NRCS has sought to expand the availability of technical service 
providers nationwide, though their distribution across the country is 
not uniform. NRCS believes that the term ``participant'' more 
accurately defines the individuals and entities for which the TSP 
provisions are available. Therefore, no changes have been made to this 
term.
Section 652.5(c)
    Comment: Section 652.5(c) provides that to acquire technical 
services from a technical service provider, participants must comply 
with the program agreement and select a certified technical service 
provider from the approved list of technical service providers. NRCS 
received 12 comments to this section. Eight of the commenters expressed 
support for the participant selecting the technical service provider 
from the NRCS list of certified technical service providers. Two 
commenters expressed concern about a program participant being assigned 
a technical service provider through a State contract or cooperating 
agreement. Two commenters requested that NRCS clarify whether a public 
agency can be placed on approved list of certified technical service 
providers.
    Response: Participants are given the option to choose whether they 
wish NRCS to provide the technical services or to hire a technical 
service provider themselves. If NRCS is the chosen technical service 
provider, NRCS will either provide the services with its own personnel 
or with technical service providers assisting NRCS under a procurement 
contract or a contribution agreement. If a public agency plans to 
provide technical assistance directly to landowners, they may be placed 
on the approved list of certified technical service providers if they 
meet the certification standards. Public agencies may also be eligible 
to enter into program contracts or written agreements directly with the 
Department to deliver technical assistance if they meet the requisite 
qualifications.
Section 652.5(d)
    Comment: Section 652.5(d) provides that a participant must submit 
to the Department an invoice, supporting documentation, and a request 
for payment in order to obtain payment for technical services obtained 
from a certified technical service provider. Section 652.5(d) provides 
that a participant may receive payment or, upon receipt of an 
assignment of payment from the participant, NRCS may make payment 
directly to the technical service provider. NRCS received fifteen 
comments related to this provision. Nine of the commenters expressed 
concern about receiving payment through a participant because the 
submission of payment information would be done on the participant's 
schedule and subject to the participant's level of satisfaction with 
the quality of the technical services. Six commenters expressed support 
for the ability of technical service providers to receive payment 
directly through an assignment of payment process.
    Response: NRCS based its payment process in the rule upon the 
requirements in the TSP statutory provisions that the option for the 
participant to select a technical service provider be through a payment 
to the participant. Any payment by the participant to the TSP is 
between those two parties under their contract and does not impact our 
payment to the participant under the program agreement. NRCS believes 
that the payment and assignment of payment options meet these statutory 
limitations and therefore no changes were made to this provision.
Section 652.5(g)
    Comment: Section 652.5(g) of the Interim Final Rule provided that a 
participant may be reimbursed for technical service provider costs 
incurred prior to entering into a program contract or agreement 
provided several requirements were met. NRCS received 8 comments in 
response this section. These comments supported the concept of 
providing assistance for technical services needed prior to entering 
into a program agreement or contract, but expressed concern that some 
participants may view it as an entitlement. Therefore, several of the 
commenters suggested the modification to the regulatory language to 
require a written contract or working agreement with NRCS before a 
participant can expect payment for these technical service costs.
    Response: NRCS made changes to this section in response to these 
comments. NRCS modified the regulation to add the explicit requirement 
that NRCS requires the participant to enter into a written agreement 
with NRCS before NRCS will pay a participant for technical services 
obtained prior to entering into a program agreement or contract. This 
written agreement is not the same as the program agreement or contract, 
and does not indicate that a person has been accepted into a Farm Bill 
program. Any agreement is subject to the availability of funds and will 
be awarded in accordance with the priorities established by the State 
Conservationists. By making these changes in the final rule, NRCS will 
be able to manage the technical service funds more efficiently to meet 
the needs of its participants.
Section 652.5(h)
    Comment: Section 652.5(h) provides that participants must authorize 
in writing to the Department the disclosure of their records on file 
with the Department that they wish to make available to specific 
technical service providers hired by the participant. NRCS received 16 
comments specific to this provision. Fourteen of the comments expressed 
support for the confidentiality of participant records but were 
concerned that Federal disclosure laws and protections did not apply to 
technical service providers hired by participants. Two of the 
commenters expressed concern that the use of technical service 
providers should not be a shield from scrutiny when the service 
provided are paid with public funds to implement public programs.
    Response: NRCS incorporated Sec.  652.5(h) in the Interim Final 
Rule to notify participants that the Federal government would not 
disclose their records unless required by Federal disclosure laws or 
authorized by the participant. NRCS discussed this issue in greater 
detail earlier in the preamble discussion under Sec.  652.4. NRCS did 
not make any changes to this section in the final rule.
Section 652.5(i)
    Comment: Section 652.5(i) provides that payments for technical 
services will be made only one time for the same technical service 
provided unless, as determined by the Department, the emergence of new 
technologies or major changes in the participant's operations 
necessitated the need for additional technical services. NRCS received 
2 comments, one commenter stating that a conservation plan should not 
have to

[[Page 69461]]

cover a landowner's entire property and the other commenter stating the 
provision needs to allow for follow-up assistance in implementing their 
plans and agreements.
    Response: NRCS believes that conservation program requirements 
determine the extent of conservation planning that is needed to meet 
the goals of the particular program, and consequently, such a matter 
does not need to be addressed further in this rule. Therefore, no 
changes have been made to this provision.
Section 652.5(j)
    Comment: Section 652.5(j), was added in the amendment to the 
Interim Final Rule published March 24, 2003, and provides that a 
participant may earn credits towards their cost-share practice 
installation if a participant selects a technical service provider with 
prices below the not-to-exceed rates for the provision of technical 
services. The credits earned will be equal to a percentage of the 
savings generated by the participant by choosing a lower cost technical 
service provider, but such amount could not exceed any statutory 
limitations on cost sharing or payments for a particular program. NRCS 
received 23 comments on this provision, 22 of which expressed concern 
about the ethical problems the cost-share credit could create.
    In particular, these commenters expressed that the incentives 
created by this provision would encourage participants to make the cost 
of the professional service their first consideration. Pressure would 
be placed on prospective TSPs to make cost concessions in order to 
obtain the contract with the participant. Succumbing to this pressure 
may even violate the professional's code of ethics to which he or she 
must adhere.
    Response: In response to these comments and internal financial 
administrative concerns, NRCS has removed this provision from the final 
rule. Without the cost-share credit, NRCS believes that the NTE 
framework for establishing TSP reimbursement is consistent with 
principles that quality should be a primary focus regarding the 
acquisition of professional services. The use of NTE rates is analogous 
to developing a reasonable estimate of what professional services 
should cost as part of the Federal procurement process.
    NRCS believes that it has attempted to introduce market forces into 
the process by utilizing NTE rates as a base that the participant is 
assured when negotiating for professional services. Since NRCS will not 
cover any cost above the NTE rate, the participant has a vested 
interest in obtaining the best quality service for the price. 
Therefore, market incentives are already built into the system without 
including a credit clause. In addition, NRCS believes that these market 
incentives maintain a more balanced approach between quality of service 
and cost when encouraging a private market for technical service 
providers.

Section 652.6 Departmental Delivery of Technical Services

    Comment: Section 652.6 of the Interim Final Rule described how NRCS 
may procure technical services from technical service providers to 
assist NRCS in the development and implementation of the Farm Bill 
conservation programs and the instruments that NRCS would utilize to 
obtain those technical services. NRCS received a total of 296 comments 
about the provisions in Sec.  652.6, including 19 general comments on 
the topics encompassed within the section.
    Five of the general comments expressed concern about the ability of 
TSPs to have the breadth of knowledge about conservation planning and 
also expressed concern about the continued ability of NRCS to maintain 
its technical capabilities if NRCS staff were diverted to handle the 
administrative responsibilities associated with the TSP provisions.
    Response: NRCS appreciates the commenters' recognition that NRCS is 
the leader in the delivery of conservation planning services. However, 
in order for conservation practices to be implemented effectively to 
land owners with varied needs, conservation planning needs to be 
integrated more completely in the delivery of technical services by 
private and other public entities, including delivery to customers who 
do not participate in Farm Bill programs. The TSP provisions provide an 
incentive to these non-NRCS technical service providers to gain 
expertise in conservation planning, and thus increasing the 
availability of conservation planning services. NRCS will work to 
maintain and improve its own capabilities to provide technical 
assistance directly, while encouraging expansion of the availability of 
technical services through other sources.
    Comment: Six of the commenters urged that NRCS maintain flexibility 
in administering the TSP provisions since the provisions will raise new 
and unique issue that require flexibility and deliberation to develop 
effective solutions.
    Response: NRCS believes that it has created a broad and flexible 
framework for the TSP provisions in which effective solutions can be 
crafted.
    Comment: Six of the commenters expressed general concern about the 
relationships between NRCS and other public agencies, especially 
conservation districts, that the new TSP provisions might undermine the 
base delivery of technical services. These commenters believed that 
NRCS will need to take action to maintain its base capabilities to 
deliver technical services in addition to fashioning means to expand 
the availability of technical services to participants.
    Response: The second amendment to the Interim Final Rule helped to 
ensure that NRCS could maintain its historic relationship with 
conservation districts and build additional relationships with other 
public agencies by removing the certification requirement for public 
agencies who provide technical services under a contribution agreement. 
Additionally, NRCS has addressed this concern about expanding the 
availability of technical services in the final rule at 652.6(b) by 
replacing the certification requirements with a qualification and 
performance-based selection process when NRCS procures technical 
services under Federal acquisition processes or enters into a 
contribution agreement with public or private entities.
    Comment: One commenter expressed general disapproval for the 
provisions.
    Response: NRCS recognizes that there may be dissatisfaction among 
some potential TSPs about the approach NRCS has taken in the Interim 
Final Rule. However, NRCS believes that some of this dissatisfaction 
may be alleviated by the adjustments NRCS is making in the final rule 
in response to the comments it received.
    Comment: One commenter believed that only NRCS personnel, and not 
individuals hired under Federal contract, should work with Tribal 
governments in order to maintain the government to government 
relationship.
    Response: NRCS will work with Tribal governments similar to how 
NRCS works with other governmental entities. NRCS personnel will be the 
signatories to agreements and the contacts for agreements entered into 
with Tribal governments. Tribal participants, like other participants, 
have the option to utilize NRCS or a technical service provider. If a 
participant selects NRCS, in order to meet work load obligations, NRCS 
may obtain assistance from a technical service provider hired directly 
by NRCS.

[[Page 69462]]

    Comment: Section 652.6(a) provides that NRCS may procure services 
through either a contract or a contribution agreement. Paragraph (a) 
specifies that NRCS will only enter into a contribution agreement if 
the technical service provider ``contributes at least 50 percent of the 
technical services needed to accomplish the goals of the project. * * * 
'' NRCS received 80 comments on paragraph (a), 78 of which referred to 
the 50 percent contribution rate. These 78 comments felt that the 
contribution rate should either be lowered or eliminated completely, 
stating that this requirement would discourage partners from providing 
assistance at a time when NRCS wanted to expand the availability of 
technical assistance. One commenter agreed with language in the 
preamble to the Interim Final Rule that indicated NRCS would seek to 
meet the additional demand for technical services through contracts and 
agreements, rather than expanding its own work force. One commenter 
expressed that the rule should be structured to give the State 
Conservationist and the conservation district boards the ability to 
work together in deciding the role of conservation districts in 
delivering conservation programs in association with NRCS.
    Response: The authority for contribution agreements is the 
Agriculture Appropriations Act for FY 2001, 7 U.S.C. 6962a, and is 
permanent authority for the agency. Section 6962a of Title 7 of the 
United States Code specifies that NRCS may enter into cooperative 
agreements to obtain goods and services without competition provided 
that (1) both parties to the agreement share in meeting the goals of an 
NRCS program; and (2) both parties contribute resources to meeting 
those goals. The statute did not specify a contribution rate, but 
allowed that issue to be decided by the agency.
    NRCS determined that the mutuality goals would best be served if 
the other party, or parties, shared at least 50% of the cost. While 
NRCS is not able to renew several of its previous contribution 
agreements because a partner is unable to meet the 50% contribution 
requirement, NRCS has greatly increased its utilization of competitive 
processes under Federal contracts and cooperative agreements. 
Therefore, several partners with whom NRCS previously worked with under 
a contribution agreement may now compete for projects through these 
competitive processes. If an interruption in program delivery appears 
to result from the 50% contribution requirement, NRCS will reconsider 
this particular issue. However, NRCS's current experiences is that the 
conservation programs are being effectively delivered under the current 
contribution rate requirements.
    NRCS will continue to work with conservation districts and its 
other partners to provide a comprehensive technical service delivery to 
its conservation participants. Conservation participants benefit from 
having multiple potential sources of technical services.
    Comment: Section 652.6(b) of the Interim Final Rule indicated that 
the Department may also enter into competitive cooperative agreements 
to expand the availability of technical services. Paragraph (b) 
specified that only the Chief, NRCS, or Administrator, Farm Service 
Agency, could determine that competition was not needed for an award of 
a particular cooperative agreement, as allowed by 7 CFR Part 3015. NRCS 
received 15 comments on Sec.  652.6(b). Ten of these comments expressed 
general support for the use of cooperative agreements, especially to 
provide external expertise in geographic or substantive areas where 
NRCS may not have sufficient personnel. One commenter recommended that 
NRCS State Conservationists be authorized to determine whether 
competition was needed or not in the award of a particular agreement. 
One commenter stressed that NRCS honor existing cooperative agreements. 
One commenter recommended that NRCS consider proposals from qualified 
conservation organizations to partner on regional or large-scale 
conservation initiatives. One commenter questioned the role of the Farm 
Service Agency. One commenter questioned whether there existed enough 
qualified technical service providers and whether Federal annual 
appropriation processes and funding delays would prevent the adequate 
availability of technical assistance funds.
    Response: NRCS honored existing cooperative agreements but has only 
renewed or entered into new cooperative agreements that are consistent 
with the provisions of the Interim Final Rule. The scope of the 
contracts and cooperative agreements NRCS has formed reflects program 
participants' varying needs for technical services. Some contracts or 
agreements are project-specific, while others provide the framework for 
numerous projects within a geographic area or of a particular technical 
service need. NRCS works with the full range of available qualified 
technical service providers, though in the first year of 
implementation, NRCS worked more predominantly with public agencies and 
non-profit organizations.
    NRCS expects that it will enter into more contracts with private 
commercial entities in the current fiscal year and will strive to 
balance its acquisition of assistance from all sources of technical 
services. However, technical assistance funds are annual funds, and 
unless they become obligated by the end of the fiscal year, they become 
unavailable. The Farm Bill technical assistance funds that were made 
available this year encompassed all Title XII programs, including the 
Conservation Reserve Program administered by FSA.
    NRCS has restructured Sec.  652.6 to incorporate the two-pronged 
approach for NRCS acquisition of technical services, and thus paragraph 
(b) of the final rule now provides that a TSP may obtain a payment for 
technical services under a contract, cooperative agreement, or 
contribution agreement with NRCS that contains qualification and 
performance criteria even if the TSP is not certified in accordance 
with subpart B of the final rule.
    Comment: Section 652.6(c) of the Interim Final Rule provided that a 
certified technical service provider is not eligible to receive payment 
under a program contract or agreement for technical services provided 
directly to a participant if that technical service provider has 
entered into an agreement with NRCS to provide technical services to 
that participant.
    Response: The provisions of Sec.  652.6(c) have been moved to Sec.  
652.6(d), and the new Sec.  652.6(c) in the final rule provides that 
NRCS will utilize the applicable competition and selection criteria 
under the Federal Acquisition Regulations, Federal Grants and 
Cooperative Agreements Act, and related applicable requirements.
    Comment: NRCS received 181 concerning issues related to matters in 
paragraph (c) of the Interim Final Rule. For example, questions were 
raised in listening sessions and elsewhere about a potential ``conflict 
of interest'' if a technical service provider hired by NRCS also 
attempts to sell agricultural products in the course of providing those 
technical services. This particular issue was not discussed in the 
Interim Final Rule. Ninety-six commenters responded negatively, stating 
that they strongly opposed statements made by some people at the 
listening sessions that suggested to NRCS that private sector TSPs who 
sell agriculture input products have a conflict of interest. These 96 
commenters emphasized the trust and strong relationship that such 
private sector TSPs have developed with their farmer customer over the

[[Page 69463]]

years. Sixty-one commenters responded that they favored a conflict of 
interest provision, stating that TSPs should be independent of any 
financial interest in the sale of any materials, equipment, or inputs 
needed for implementing a conservation plan.
    Response: This particular issue is not a regulatory issue 
appropriately addressed in this regulation, but is one that should be 
handled between the party who seeks technical services and the party 
who provides the technical services. This is not an ethics matter to 
which the Federal rules apply. Participants are prudent to adopt a 
``buyer-beware'' approach in their business transactions, including who 
they decide to hire to provide them with technical services.
    Comment: NRCS received 15 comments requesting that NRCS consider 
the significant role that certified crop advisers (CCA) can play in 
helping NRCS in implementing the Farm Bill conservation programs. In 
particular, these comments described the rigorous agronomic curricula 
and testing programs needed in modern agriculture and the extensive 
training that exist through the CCA certification program.
    Response: NRCS has entered into Memoranda of Understanding (MOU) 
with several organizations related to evaluating the qualifications of 
individuals and entities interested in providing technical services to 
conservation participants. These recommending organizations include: 
the Society for Range Management (signed 02/02/03); the American 
Society of Agronomy--Certified Crop Advisers, Certified Professional 
Crop Scientists, Certified Professional Agronomists (Updated 02/06/03); 
American Society of Agronomy--Certified Professional Soil Scientists 
(Updated 02/06/03); The Wildlife Society--Certified Wildlife Biologist 
(signed 03/27/03); University of Tennessee (signed 04/09/03); 
Irrigation Association (signed 05/08/03); Environmental Management 
Solutions, LLC (signed 06/17/03); American Registry of Professional 
Animal Scientists (signed 07/30/04); Association of Consulting 
Foresters of America, Inc. (signed 09/15/04); and, Iowa State 
University (signed 10/14/04). NRCS values the contribution provided by 
certified crop advisers and the many other professionals and 
professional organizations that have assumed responsibility for 
ensuring that high quality technical assistance is provided to 
landowners. Through these MOUs and other discussions with professional 
organizations, NRCS is clarifying the proficiencies, standards, and 
work statements that help both the recommending organization and 
technical service provider applicants to understand and provide the 
expected quality of service.
    Comment: NRCS received 1 comment competition between profit and 
non-profit organizations is unfair. NRCS also received 1 comment 
disagreeing with preamble language that public agencies have a conflict 
of interest. One commenter indicated that NRCS should ensure that 
individuals and organizations that provide technical services do not 
recommend or approve their own work. Finally, NRCS received one comment 
that the rule did not clearly distinguish between TSPs hired by 
participants and those obtained by NRCS through contracts, contribution 
agreements, and cooperative agreements.
    Response: NRCS is making changes to Sec.  652.6 in response to 
these comments and comments received internally from the implementation 
of the TSP provisions for the past year and a half. NRCS indicated in 
the preamble of the Interim Final Rule that it would utilize technical 
assistance from only technical service providers that had been 
certified under the provisions of the Interim Final Rule. The original 
TSP Interim Final Rule prohibited NRCS from making a payment under a 
program contract or agreement, a procurement contract, a contribution 
agreement, or cooperative agreement for technical service provided by a 
technical service provider unless the technical service provider was 
certified by NRCS and was identified on the approved list. NRCS 
modified this provision in the July 9, 2003, TSP rule amendment to 
allow NRCS to make a payment to a public agency who entered into a 
contribution agreement with NRCS, as described above. In the final 
rule, NRCS has placed all parties who do business directly with the 
Agency, both public and private entities, on an even playing field by 
removing the certification requirements and simplifying the process for 
selection of qualified providers.
    NRCS has determined that its TSP certification requirements are 
potentially inconsistent with the legal framework for obtaining 
Architectural and Engineering (A & E) services, and that it needed to 
address this issue in this final TSP rule. NRCS based its determination 
upon the Brooks Act (Public Law 92-582) and the process by which 
Federal agencies must select A & E services. The Brooks Act sets forth 
the procurement process by which architects and engineers are selected 
for design contracts with Federal design and construction agencies. The 
Brooks Act establishes a qualifications-based selection process, in 
which contracts are negotiated on the basis of demonstrated competence 
and qualification for the type of professional services required at a 
fair and reasonable price. The Brooks Act selection process is more 
detailed and tailored to the acquisition of these types of services 
than the TSP certification requirements.
    NRCS is modifying Sec.  652.6 in the final rule distinguishing 
further between participant acquisition of technical services and NRCS 
delivery of technical services through contracts, contribution 
agreements, or cooperative agreements. Technical service providers who 
desire to work directly with participants will need to be certified 
under these regulations to receive payment from the participant through 
a reimbursement from NRCS. Technical service providers who wish to 
enter into a Federal contract, contribution agreement, or cooperative 
agreement with NRCS to deliver technical services must meet Federal 
acquisition or USDA Federal assistance rules and requirements for 
competency, quality, and selection, as appropriate. NRCS will 
incorporate into its contracts and agreements the necessary quality and 
performance requirements. Technical service providers who are selected 
as qualified and competent under such requirements will not need to be 
certified separately under TechReg when entering into contracts and 
agreements with NRCS.
    This two-pronged system will meet statutory requirements, address 
concerns raised by commenters to the Interim Final Rule, and provide a 
logical distinction between technical service providers who are hired 
by participants and those who are hired by NRCS.
    In addition, Section 1242(b)(3) of the Food Security Act, as 
amended, requires that NRCS evaluate individuals and entities with whom 
it had, prior to May 13, 2002, an agreement to provide technical 
assistance according to the system for approving individuals and 
entities developed by NRCS under regulation. In particular, Section 
1243(d) of the Food Security Act provides that participants may obtain 
technical assistance from ``approved sources, as determined by the 
Secretary, other than the Natural Resources Conservation Service.'' 
Pursuant to this authority, enacted in the 1996 Farm Bill, prior to the 
enactment of the 2002 Farm Bill, NRCS had entered into Memoranda of 
Understanding (MOU) with several organizations to assist NRCS with the 
evaluation and approval of individuals and entities to provide 
technical services, such as conservation planning,

[[Page 69464]]

to conservation participants. The MOU set forth the qualifications 
these sources of technical assistance would need to meet in order to be 
``approved'' by NRCS. While NRCS did not make payment to participants 
for participants to utilize these sources of technical assistance, 
these technical assistance providers have received a type of approval 
from NRCS to provide technical services to participants. Pursuant to 
Section 1242(b)(3), NRCS updated many of these Memoranda of 
Understanding to ensure that these previously approved providers of 
technical services were evaluated under the requirements of the Interim 
Final Rule, and thus allow participants that utilized these sources of 
technical services to receive payment for such assistance. Where 
appropriate, the MOUs, as modified, now serve as the basis for NRCS to 
receive recommendations for certification from organizations with an 
appropriate accreditation program in place under Sec.  652.25 of this 
part.

Section 652.7 Quality Assurance

    Section 652.7 of the Interim Final Rule provided that NRCS would 
review, in consultation with the Farm Services Agency (FSA), as 
appropriate, the quality of the technical service provided by technical 
service providers. In particular, the Interim Final Rule required that 
technical service providers develop and maintain documentation in order 
to facilitate the NRCS quality assurance process.
    Comment: NRCS received 83 comments to this section. Forty 
commenters believed that NRCS must review and approve all plans 
prepared by technical service providers to ensure consistency and 
adequacy of the technical services, and thus make NRCS accountable for 
the plans. Seventeen commenters, however, believed that a system of 
random spot-checks was adequate to ensure quality of technical service.
    Response: Similar to NRCS quality assurance reviews conducted for 
conservation programs, NRCS will conduct quality assurance reviews to 
verify the quality of technical services provided. As an internal 
management process, NRCS does not specify in the final rule the 
particular methodology it will utilize for conducting quality assurance 
reviews. Instead, NRCS sets forth in policy its quality assurance 
methodology and procedures, and will modify these procedures if needed. 
Currently, NRCS randomly selects and evaluates projects implemented by 
both its employees and technical service providers to ensure quality of 
technical service delivery. When deficiencies are identified, NRCS 
takes the necessary action. NRCS believes that the random selection 
process provides sufficient review of the work performed by its 
employees and TSPs in a cost-efficient manner. While a 100% review 
would provide more complete information about the quality of work being 
performed, such an extensive quality assurance process would greatly 
increase technical assistance costs and lacks practicality from an 
administrative standpoint.
    Comment: NRCS received six comments expressing support for NRCS as 
the agency providing quality assurance, four comments requesting that 
NRCS extend its quality assurance process to training programs for 
technical service providers, three comments expressing support for 
quality assurance, two comments requesting that NRCS distinguish its 
quality assurance process for plans from its quality assurance process 
for practice implementation, two comments requesting clarification of 
the need for coordination with FSA, and one comment requesting that 
NRCS district conservationists hold regular meetings with technical 
service providers to improve communications.
    Response: The Secretary of Agriculture delegated to NRCS the 
responsibility to implement the TSP provisions of the 2002 Farm Bill 
for all conservation programs, including programs administered by FSA. 
Since FSA participants may utilize the services of technical service 
providers, NRCS must coordinate with FSA to ensure that the needs of 
FSA and its participants are met.
    NRCS intends to ensure, through the certification criteria and 
quality assurance procedures, that participants will receive high 
quality technical services, whether the participant chooses NRCS or a 
technical service provider. Therefore, NRCS will provide comprehensive 
policy and guidance on technical service delivery and will make such 
policy and guidance available through TechReg. As mentioned above, NRCS 
currently selects and evaluates projects implemented by both its 
employees and TSPs on a random basis. The number, type, and location of 
projects selected for review are determined through criteria identified 
in the NRCS Conservation Programs Manual.
    Comment: NRCS also received 3 comments regarding the need to have a 
strong quality assurance program and to verify the credentials of 
individuals and entities certified as technical service providers.
    Response: The verification of Technical Service Provider 
certifications and quality assurance of services provided are essential 
elements in assuring that there are available qualified, able and 
skilled Technical Service Providers. TSPs identify in TechReg that they 
have the requisite education and experience to accomplish the technical 
service for which they wish to be certified, and NRCS must be able to 
confirm that such criteria have been met. In the final rule, NRCS 
identifies the verification as an essential part of its quality 
assurance and certification responsibilities by adding a paragraph to 
Sec.  652.2(c), a new sentence to Sec.  652.2(f) regarding submission 
of education and licensing documentation, and a new provision in Sec.  
652.7(a) about utilizing documentation submitted by the TSP as part of 
its quality assurance process. NRCS adopts a verification process for 
all certified technical service providers. This will ensure that 
participants receive the highest quality technical service. A potential 
TSP will still need to submit only one application and list additional 
States in which the applicant wishes to be considered for national 
certification.

Section 652.8

    Section 652.8 was added to the Interim Final Rule in the July 9, 
2003 amendment, and established a limited exception to certification 
requirements for State, Local and Tribal Government partners. In 
particular, Sec.  652.8 of the Interim Final Rule established that, in 
carrying out its duties to deliver technical services, the Department 
may enter into agreements 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.
    Comment: NRCS received 24 comments on this section. The topics fell 
into 8 categories. Eight commenters supported the limited exception and 
the use of agreements, however, they felt that only one agreement 
should be required by a partner rather than both a working agreement to 
establish qualification requirements and a contribution agreement to 
obligate funds for projects. Fourteen commenters opposed the use of the 
exception because they believed it is preferential and should be 
available to all interested in participating in this manner. These 
commenters felt strongly that the private sector has the same ability 
to contribute as the public sector. Two commenters recommended reducing 
the match

[[Page 69465]]

requirement from 50% or allowing in-kind contributions to constitute 
the match. One commenter asked for clarification of the restrictions, 
such as time frame limitations related to the memorandum of 
understanding. They also stated that it would be difficult for State 
agencies to keep current the names listed as representing them because 
of high turnover rates.
    Response: NRCS responded to the concerns raised in this section in 
its discussion in Sec.  652.6, Department delivery of technical 
services. In particular, NRCS has established a two-prong system for 
technical services delivery. NRCS has modified Sec.  652.6 to 
distinguish between participant acquisition of technical services and 
NRCS procurement of technical services. Technical service providers who 
desire to work directly with participants will need to be certified 
under these regulations to receive payment from the participant through 
a reimbursement from NRCS. Technical service providers who enter into a 
Federal contract, contribution agreement, or cooperative agreement with 
NRCS to deliver technical services must meet Federal acquisition or 
USDA Federal assistance rules and requirements for competency, quality, 
and selection, as appropriate. NRCS will incorporate into its contracts 
and agreements the necessary quality and performance requirements. 
However, technical service providers who are selected as qualified and 
competent under such requirements will not need to be certified 
separately under TechReg when they enter into procurement contracts or 
agreements directly with NRCS. Therefore, NRCS has removed Sec.  652.8 
from the final rule.

Section 652.21 Certification Criteria and Requirements

    Section 652.21 of the Interim Final Rule set forth the minimum 
certification criteria and requirements for an individual to qualify 
for certification under the TSP provisions. In particular, Sec.  652.21 
establishes that an individual must: (1) Have the technical training, 
education, or experience to perform the level of technical assistance 
for which certification is sought; (2) meet the applicable licensing or 
similar qualification standards; (3) demonstrate through documentation 
of training or experience, familiarity with NRCS technical and program 
requirements; and (4) not be decertified in any State under these 
provision. Section 652.21 also requires as part of certification, that 
the individual must enter into a certification agreement with NRCS 
specifying the terms and conditions of the certification. NRCS 
certification is in effect for three years, unless decertified. NRCS 
also indicated that it might establish and collect fees for 
certification of technical service providers. Finally, this section 
also addressed conditional certification.
    NRCS received 247 comments on this section concerning three main 
topics: criteria and requirements, training, and certification. 
Therefore, NRCS discusses these comments below by topic, rather than by 
paragraph as was done in the previous preamble discussion.
Criteria and Requirements
    Comment: NRCS received 9 comments opposing national certification 
and 4 comments supporting national certification with State 
reciprocity. The commenters opposed to national certification expressed 
concern that technical service providers would not be in compliance 
with State regulations. One commenter believed certification should be 
done on a single-State basis. This commenter also believed that 
technical service providers should be subject to all NRCS documentation 
requirements and that NRCS should provide ongoing training. Two 
commenters supported regional certification. These commenters also 
recommended cross-state certification reciprocity for technical service 
providers working in multiple states.
    Two commenters did not support self-certification, but recommended 
that if such an approach were taken, NRCS should post self-
certifications on a public website, with meaningful certification 
limited to those areas where credentials are checked by State 
Conservationists or their designees. These commenters believed that 
payments should only be made to those technical service providers whose 
credentials have been verified. Six commenters recommended that NRCS 
require State Conservationists to contact appropriate State agencies to 
ensure compliance with State requirements. Two commenters suggested 
that NRCS establish a review and sampling process to verify and 
evaluate TSP qualifications. One commenter recommended the development 
and use of a TSP locator to encourage TSPs to post resumes, one 
commenter thought there is a need for uniform criteria and requirements 
with a baseline national certification on self-certified qualifications 
and compliance, and one commenter recommended NRCS provide guidance to 
State Conservationists that encouraged the development of quality 
assurance measures to ensure program standards and legal requirements 
are being met. The commenter felt that NRCS should not check every 
single practice but rather provide onsite NRCS spot checks on newly 
certified technical service providers and ongoing random spot checks to 
ensure quality. One commenter said NRCS should make sure the 
qualification standards are high enough so that NRCS field staff does 
not have to recheck contractor work.
    Response: NRCS believes comments about National certification and 
verification of credentials are interrelated. As clarified in this 
final rule, the education, licensing and experiential qualifications 
that a TSP indicates through TechReg are subject to verification by 
NRCS. Notably, in both the original Interim Final Rule and in the March 
24, 2003 Amendment, applicants for certification are required to 
``demonstrate, through documentation of training or experience'' their 
familiarity with NRCS policy, including standards, specifications and 
guidelines. Service provider applicants must demonstrate this 
familiarity and may not merely indicate that they have this familiarity 
through TechReg.
    Currently, National certification is based on a review by the 
designee of the certifying State Conservationist of applicants' 
information submitted through TechReg, including self-certification 
that the applicant is in compliance with all State and local laws and 
is familiar with NRCS guidelines, including those applicable to 
particular counties.
    NRCS State Conservationists have expressed concerns about one State 
Conservationist certifying an individual in their State and other 
States in which the applicant wishes to be considered for 
certification. Normally, certifying State Conservationists have only 
the requisite knowledge of the requirements of Federal and State 
requirements within their State, and not the requirements within the 
other States where the technical service provider may wish to be 
certified. Therefore, NRCS is making internal policy adjustments to 
address this concern while maintaining a National process through which 
individuals seek certification in a single application, and thus 
maintain uniformity of the certification process. Certifying State 
Conservationists will verify in-State compliance with certification 
criteria, and refer the application to the other States where the 
applicant wishes to provide technical service. These States will verify 
the applicant's compliance with their particular certification criteria 
and only then will the certifying State Conservationist approve the

[[Page 69466]]

certification for the applicant for all the identified States. In 
addition, NRCS is improving its processes to verify qualifications.
    Comment: NRCS received 15 comments that expressed appreciation for 
NRCS recognition of its historic relationships with conservation 
districts by providing for an exemption from certification requirements 
for public agencies. Three of these commenters also encouraged the 
maintenance and continuation of cooperative agreements and contribution 
agreements. Two commenters recognize the short time frame to implement 
the provisions and stated that it warranted immediate certification for 
traditional partners.
    Response: NRCS discussed above in Sec.  652.6 that when it obtains 
assistance from a technical service provider, whether a public agency 
or a private entity, through a procurement contract, contribution 
agreement, or cooperative agreement, the technical service provider is 
authorized to provide technical services and receive payment even if 
such individual is not certified in accordance with Sec.  652.21.
Training
    Comment: NRCS received 75 comments related to the topic of training 
and certification. Many of these comments, including 37 from 
universities, recommended adding language to the rule that NRCS will 
subsidize the cost of providing training. In particular, these 
commenters recommended that training entities should be allowed to 
design and provide training on a cost recovery basis with NRCS covering 
the cost of training. NRCS also received a range of recommendations 
regarding the development and delivery of training, including 
partnering with universities and the Extension Service; delivering 
training through distance learning and demonstration projects; 
establishing core training with state additions; continuing education 
requirements; building capacity based upon current competency; and 
reciprocity of the training materials between States.
    Response: NRCS recognizes that TSP has the potential to support 
expansion of a qualified technical service provider industry, however 
NRCS has neither the resources nor specific authority to provide 
training to individuals and entities outside of the agency, nor does it 
want to compete with partners and private interests whose primary 
purpose is to provide training and services to professionals in this 
field.
    NRCS also recognizes that its staff currently comprises the largest 
repository of information and expertise in the field of natural 
resource planning and implementation on private land. NRCS is committed 
to enabling the development of external training sources and for these 
reasons, agency staff will be made available to assist in the support 
of the training developed by others in order to facilitate the 
administration of the Title XII programs.
    NRCS recently convened a Technical Service Provider Training 
Summit, where TSPs, private training consultants and Universities, 
defined training strategies to address the future needs for training in 
this area. NRCS recognizes that its staff's expertise is required to 
train the trainers initially. For a limited time, NRCS will commit 
staff resources and funding to support the development of training, 
after which it is anticipated that private sector providers and 
universities will aptly provide the required training.
    Although NRCS knows that service providers will eventually depend 
on external sources for training, NRCS will continue maintaining the 
standards that TSPs must meet. For instance, NRCS has developed and 
intends to maintain statements of work for each of the practices for 
which technical service providers may be paid. NRCS has developed and 
shared with entities with accrediting programs and other potential 
trainers the proficiency standards technical service providers must 
meet in order to successfully become NRCS-certified. NRCS is working 
with these organizations to ensure that their training programs meet 
these standards. NRCS will maintain these proficiency standards 
requisite to establishing a qualified core of professionals carrying 
out natural resource work funded with public money.
    NRCS acknowledges its responsibility service providers, both those 
seeking certification others already certified, to help them understand 
the requirements and processes associated with TSP. To fulfill this 
responsibility, NRCS intends to develop step-wise Web or compact disc 
based training in TSP procedures. Training in order to facilitate 
administration of technical services for Title XII conservation 
programs is an internal administrative matter more appropriately 
addressed in internal agency guidance and policy. So although NRCS has 
not made any additions to the final rule in response to comments on 
training, it intends to facilitate the growth of professional 
development opportunities for natural resource professionals.
Certification
    Comment: NRCS received 33 general comments about certification as 
described in this section, Sec.  652.21. Nine commenters felt 
certification should be streamlined to minimize service delivery costs. 
They expressed that part of this streamlining should include delegating 
approval authority to each NRCS State office, because National 
certification standards would not accommodate individual State 
differences.
    Response: As described above, NRCS will have essentially a National 
certification process and registry through State-verified 
certification. Adjustments to the administration of the certification 
process will be handled through internal agency policies regarding the 
routing of applications to the appropriate NRCS State offices.
    Comment: Five commenters recommended that State Conservationist 
actively encourage a wide range of technical service providers to 
participate in the TSP program and that NRCS should not limit 
certification to any one group. These commenters were concerned about 
potential conflict of interest that could result if only one source of 
technical service providers was utilized. The commenters also expressed 
that certification should require a combination of credentials, 
education, training and experience, and that individuals providing 
technical service through an entity or public agency should have 
qualifications and expertise specific to the resource concerns, 
practices and systems relevant to the services provided. NRCS also 
received 2 related comments expressing concern that the relationship 
between certified crop advisors (CCA) and NRCS needs to be clarified 
and that a technical service provider must not necessarily be a CCA.
    Response: NRCS believes that the success of the TSP provisions 
depends upon attracting a diverse technical service provider pool with 
varied skills and perspectives. Therefore, no single source of 
technical services is emphasized, and the opportunity for certification 
is open to all qualified individuals and entities. However, any 
individual or entity providing technical services to either 
participants or the Department must demonstrate their qualifications as 
competent technical service providers. NRCS encourages a multi-
disciplinary approach to resource conservation, as it is often 
difficult for a single profession or discipline to provide the full 
range of demanded technical services.

[[Page 69467]]

    Comment: NRCS received nine comments related to the qualification 
standards for certification. Three commenters recommended recognizing 
and grandfathering into certification retired NRCS employees, thereby 
creating a system that provides levels of certification based on years 
working for NRCS. Two other commenters recommended utilizing existing 
certifications, and one commenter believed that all technical service 
providers, including new and experienced technical service providers, 
should be held to the same standard of certification. One commenter 
suggested that certification be for specific practices, tied to 
specific educational requirements, credentials, training and 
professional experience. The commenter also suggested there be a limit 
on the number of uncertified employees under a certified persons' 
direction. One commenter believed the certification requirements were 
unclear, while two other commenters expressed appreciation for what 
they felt was a simple application process that only evaluated 
necessary information.
    Response: NRCS believes that all technical service providers need 
to be held to the same standards of quality and proficiency, regardless 
of their prior relationship to NRCS. NRCS plans to verify technical 
service provider credentials in a manner that ensures participants 
receive competent technical service delivery.
    NRCS also is making efforts to clarify its expectations regarding 
specific practices through published statements of work that outline 
required deliverables. NRCS recognizes the challenges that technical 
service providers must meet in order to comply with State licensing 
provisions and NRCS requirements. Technical service providers should 
identify and establish staffing levels to meet these requirements, that 
may vary depending upon the type of work to be completed. Therefore, 
NRCS does not believe it is prudent for the agency to establish in the 
rule a numeric limit on how many non-certified employees a certified 
individual may supervise. The certified individual and entity assumes 
full legal responsibility for the work completed by non-certified 
individuals working under the auspices of their certification, and 
therefore, should exercise the necessary level of oversight.
    Comment: NRCS received 4 miscellaneous comments regarding 
certification. One commenter recommended that NRCS develop a TSP packet 
that includes an explanation of the certification process, forms and 
application. This commenter also recommended that NRCS include field 
practices and cost share lists, as well as appropriate reporting codes 
for databases. One commenter recommended establishing a carbon 
sequestration specialist class to be added to the cadre of TSP 
specialists. These specialists would develop landscape management plans 
on eligible lands that increase biomass production over a baseline for 
the purpose of drawing carbon dioxide from the atmosphere and storing 
it for periods of time in plants and soils. One commenter stated that 
State Conservationists should work with State agencies in the 
development of fish and wildlife technical services delivery. Finally, 
NRCS received one comment recommending that NRCS allow technical 
service providers to use local NRCS office space, phones, faxes and 
electronic mail.
    Response: NRCS has established a website, TechReg, that provides 
the electronic equivalent of a TSP packet. On TechReg, technical 
service providers and participants may access current information and 
technical references about TSP. Among the available technical 
references, a person can access eFOTG, the NRCS electronic reference 
for technical standards. NRCS expects that as demand for additional and 
emerging technical services grows, new categories and standards for 
technical service, such as carbon sequestration specialists, will be 
developed. While NRCS is dedicated to making available technical 
resources, overhead costs for delivery of technical services are the 
responsibility of the technical service provider and not the Federal 
government.
Fees
    Comment: Section 652.21(e) provides that NRCS may establish a 
system for collecting fees related to certification. NRCS received 21 
comments about this provision, 18 of which expressed support for NRCS 
charging a certification fee. However, several of these commenters 
recommended that particular individuals or entities, such as State 
agencies or retired professionals, should be exempt from having to pay 
the fee. Some commenters said certification fees would be viewed as a 
mandatory tax, while others suggested that the certification fee was a 
duplicate certification charge since many service providers already pay 
fees to State licensing boards. Three commenters said it would be 
appropriate to charge a fee to cover administrative costs only.
    Response: NRCS has not established a system for collecting fees at 
this time. However, the authority exists under 31 U.S.C. 9701, for such 
a system, and the rule reflects that this authority exists and may be 
used in the future. No changes were made to the rule in response to 
these comments.
Policy & Procedure
    Comment: NRCS received nineteen comments related to policy and 
procedures for technical service providers that mirror many of the 
comments NRCS received under other sections. In particular, these 
commenters felt that TSP certification should be national in scope with 
flexibility to meet State and local conditions. They suggested that 
standards need to be tailored to State and local needs. These comments 
indicated that NRCS should establish minimum qualification standards 
for all groups, including requirements for education, training, and 
experience for all resource concerns, practices and agricultural 
systems for which certification is sought. One commenter suggested that 
a process be developed to ensure entities and public agencies do not 
provide blanket certification of individuals where expertise has not 
been developed. NRCS also received a comment that NRCS should define 
methods for certifying farmland protection skills.
    Response: NRCS has developed proficiency standards accessible 
through TechReg and is working with various organizations and 
universities to develop appropriate training to ensure technical 
service providers' competence. NRCS will not change its certification 
requirements, but as previously described, it has established a means 
to validate self-certified credentials.
State Coordination
    Comment: Five commenters said NRCS needs to ensure State and local 
reciprocity in its certification process. One commenter indicated that 
technical service providers should not be unduly inhibited or 
restricted when providing technical services across State lines. Two 
commenters said the certification process needs to allow for technical 
service providers to work across State lines.
    Response: As described earlier, certification needs to be 
coordinated between States due to the unique and diverse conservation 
technical requirements of each State and its laws. However, NRCS does 
not have authority to exempt technical service providers from State law 
requirements. Since technical service providers must comply with State 
law, including licensure

[[Page 69468]]

requirements, State-specific requirements must be met and a State-by-
State review of self-certification requirements is necessary. NRCS 
facilitates the ability of technical service providers to offer 
technical services to multiple States through its streamlined National 
certification application process, provided such technical service 
providers meet all State requirements specific to the locations where 
they wish to work. If a service provider applying for certification in 
multiple states lacks the qualifications to gain certification in each 
state, NRCS will encourage the applicant to withdraw his or her 
certification request for those particular states for which the 
applicant lacks the necessary qualifications. If the service provider 
does not wish to withdraw these requests, NRCS will delay granting 
certification until the applicant obtains the necessary qualifications 
in each state requested.
    Comment: One commenter believed that the certification process for 
NRCS employees should be the same as for technical service providers.
    Response: NRCS has a long-established planning certification and 
job approval authority structure that applies to its employees and the 
proficiencies they must meet to provide services in their location of 
employment. If a current NRCS employee wishes to act as a TSP in an 
off-duty job that is unrelated to the performance of his or her NRCS 
responsibilities, such NRCS employee would need to be certified under 
this regulation.
    Comment: NRCS received one comment recommending that NRCS 
certification match the 2-year cycle for certified crop advisor 
certification renewal.
    Response: As stated previously, NRCS will not base its 
certification process upon any one organization's certification 
program, regardless of whether such organization is also a recommending 
organization as described in Sec.  652.25. While NRCS greatly 
appreciates the contribution that CCAs are making to the delivery 
system, there are multiple sources of technical service providers that 
also contribute to the delivery system and each has its own schedule 
for certification renewal. NRCS has adopted a flexible approach in this 
final rule, stating that certification shall not be for a period of 
time in excess of three years.
Quality Assurance
    Comment: NRCS received three comments to Sec.  652.21 related to 
quality assurance. One commenter stated that technical service 
providers must be certified even if the provider is working under NRCS 
supervision. One commenter encouraged NRCS to do onsite evaluations for 
animal waste systems design and installation, recommending that NRCS 
check on-the-ground outcomes related to changes in water quality or 
phosphorus index changes. One commenter stated that the review process 
should be either multi-county or at the State level. This commenter 
believed that local NRCS staff should act as a watchdog, a layer of 
local scrutiny, and should report poor performance to a local review 
board. One commenter said the section on certification agreements does 
not provide for non-disclosure of records or compliance with the 
Freedom of Information Act and Privacy Act.
    Response: The only non-NRCS personnel that work under NRCS 
supervision are employees of a conservation district with which NRCS 
has a cooperative working agreement, as described in the July 9, 2003, 
amendment to the Interim Final Rule. These non-NRCS personnel are not 
authorized under the cooperative working agreement to be hired by 
participants as technical service providers while serving under NRCS 
supervision. If the conservation district, or its employee, is hired 
directly by a participant, then neither the district nor its employees 
are operating under NRCS supervision, and they must be certified and 
operating within the legal framework of that particular county and 
State.
    When NRCS employees, or others working under its supervision or 
pursuant to a contract, provide technical services, NRCS performs the 
necessary quality assurance to ensure that practices have been properly 
designed and installed. NRCS also implements established processes to 
identify the conformance to practice standards and compliance with 
conservation program requirements. NRCS randomly selects and evaluates 
projects implemented by both its employees and technical service 
providers to ensure quality of technical service delivery. When 
deficiencies are identified, NRCS will take the necessary action, as 
appropriate.
    As specified in the preamble discussion under Sec. Sec.  652.4 and 
652.5, technical service providers hired by participants are not 
subject to Federal disclosure and privacy requirements regarding the 
release of Government records. However, NRCS is subject to these 
requirements. Therefore, NRCS must have written authorization from the 
participant before it will provide the participant's technical service 
provider access to these records.

Section 652.22 Certification Process for Individuals

    Comment: Section 652.22 of the Interim Final Rule sets forth the 
requirements for an individual to become a certified technical service 
provider. NRCS received 10 comments to this section. Three of these 
comments expressed the need to add rule language clarifying proficiency 
standards for trainers who provide training to Technical Service 
providers. This commenter also encouraged NRCS to certify training 
programs and materials that meet the agency criteria for certification 
of technical service providers.
    Response: NRCS addresses these comments in the discussion on 
training under Sec.  652.21.
    Comment: One commenter stated that NRCS should require State 
Conservationists to provide clear guidance and information to 
applicants about laws and requirements. Technical service providers 
should not be certified without demonstrating knowledge of state laws 
and requirements for the specific work for which they are seeking 
certification.
    Response: NRCS appreciates this commenters' opinion, however, each 
technical service provider is responsible for knowing and understanding 
the laws of the State in which they choose to do business. It is not 
within the agency's authority or area of expertise to interpret or 
provide information about the laws of any specific State. To the extent 
practicable, NRCS will make its staff available to any technical 
service provider to clarify its standards and specification or provide 
other information pertaining to contractual obligations imposed by the 
NRCS.
    Comment: One commenter expressed support for national 
certification. Two commenters said TSP dollars should fund only the 
work of qualified individuals. Individuals should be certified by 
category and based on clear category guidelines avoiding blanket 
certification.
    Response: As previously stated, NRCS is clarifying in its policy, 
as available on TechReg, the qualifications and proficiencies a 
technical service provider must meet in order for their work to be 
eligible for reimbursement with public funds. NRCS does certify 
individuals and entities according to categories of technical services, 
and does not provide blanket certification.
    Comment: One commenter agrees that a sufficient review time period 
is essential to a successful certification process and suggests at the 
end of a 60-day time period NRCS would accept or

[[Page 69469]]

deny certification from applicants, allowing for some fixed amount of 
time for the applicant to complete the process.
    Response: NRCS is continually making improvements to its online 
registration process, TechReg. NRCS agrees that timeliness in the 
certification process is essential and will do its part to ensure 
efficient certification of technical service providers.
    Comment: One commenter believes that the lack of a 4-year college 
degree should not hinder an applicant from certification in an area 
where they can demonstrate knowledge and expertise, and that applicants 
should have the option to pass a test or prove through documentation 
their ability to complete the required work. One commenter believed 
certified technical service providers should meet all requirements 
related to knowledge, training and experience.
    Response: NRCS understands that some of the education requirements 
may inadvertently hinder otherwise qualified individuals from becoming 
technical service providers. However, the first priority of the 
certification process is that participants are able to obtain qualified 
technical services, and appropriate levels of education is an important 
aspect to ensure competency in meeting such qualifications.

Section 652.23 Certification Process for Private-Sector Entities

    Comment: Section 652.23 of the Interim Final Rule sets forth the 
requirements for a private-sector entity to become a certified 
technical service provider. NRCS received 13 comments to this section. 
Eleven of these comments stated that NRCS should complete a market 
analysis to determine availability of technical service providers, 
assess their training needs, and establish if there is sufficient 
workload to sustain the development of a business based on participant 
demand for their services. One commenter supported the certification of 
private-sector entities. One commenter believes NRCS should 
automatically certify registered, licensed foresters who are certified 
by the National Association of State Foresters or the State Forestry 
Association.
    Response: NRCS regularly provides the public its State-by-State 
allocations and the end-of-fiscal year conservation program 
accomplishments, including the number of contracts entered, acres 
enrolled, and the amount of funds obligated. A private-sector technical 
service provider has the ability to utilize this information and other 
potential market information to perform its own business projections 
about whether adequate market-share is available to sustain a viable 
business investment. Existing and emerging technical service businesses 
need to define and market themselves to potential clients that need the 
services they provide.
    Additionally, NRCS conducts its own workload analysis and 
identifies opportunities to compete specific workload products. In 
order to access such information, technical service providers may wish 
to familiarize themselves with FedBizOpps and related sources utilized 
by the Federal Government to advertise its solicitation for bids.
    As discussed previously in this preamble, NRCS cannot provide 
blanket certification to members of a particular professional 
organization. NRCS has specific criteria that it needs to be met in 
order to certify an individual as a technical service provider. Blanket 
certification would be an impermissible delegation of NRCS's 
responsibility under the statute to certify individuals and entities as 
TSPs.

Section 652.24 Certification Process for Public Agencies

    Comment: Section 652.24 of the Interim Final Rule set forth the 
requirements for a public agency to become a certified technical 
service provider. NRCS received 57 comments to this section. Fifteen of 
these comments expressed support for exempting from certification 
requirements conservation districts or State agencies working under 
contribution agreements with NRCS. Seven comments stated that State 
agencies have stringent proficiency requirements for their employees 
and should be exempt from NRCS certification requirements. Eleven 
commenters disagreed with the requirement that public agencies assume 
liability and would reconsider their relationship with NRCS if such 
requirement is not changed. Two commenters expressed support for the 
requirement that a public agency must have a certified individual 
working under its auspices.
    Response: While NRCS recognizes that various agencies have rigorous 
requirements, the TSP statute requires NRCS to establish a system for 
evaluating who is qualified to provide technical services. Therefore, 
NRCS will require individuals and entities, including public agencies, 
to be certified in accordance with the certification process under 
subpart B, before a participant may obtain payment from NRCS for 
services rendered. When the agency is acquiring technical services, 
NRCS will set forth the qualification and performance criteria in a 
procurement contract, contribution agreement, or cooperative agreement, 
rather than through the certification process under Subpart B, to 
select qualified technical service providers. In either situation, a 
public agency must demonstrate that it has staff that meets NRCS 
technical requirements before NRCS will issue payment for technical 
services rendered by that public agency. NRCS also believes that it is 
appropriate for a public agency to assume responsibility for the work 
of its employees.
    Comment: Six commenters disagreed with the restriction on outside 
employment while four commenters agreed with the restriction.
    Response: Based on these comments, NRCS re-examined its position 
regarding outside employment of public agency employees, and felt that 
such matters were best addressed by ethical rules established by the 
public agencies. Therefore, NRCS did not prohibit in the final rule 
outside employment of certified individuals working under the auspices 
of a public agency as set forth in Sec.  652.24 of the Interim Final 
Rule.
    Comment: Four commenters stated that all technical service 
providers should be held to the same standards. Four commenters stated 
that public agencies should not be utilized as technical service 
providers unless private technical service providers were not 
available.
    Response: NRCS believes that the final rule establishes consistent 
standards for all technical service providers. Additionally, NRCS 
believes that the extra demand for technical services created by the 
increased funding for conservation programs will necessitate support 
from all sources of technical services. More importantly, Section 1242 
of the Food Security Act clearly provides that Federal, State, and 
local governments are all eligible to become technical service 
providers. Therefore, NRCS has not made any changes to this section in 
response to these comments.

Section 652.25 Alternative application Process for Individual 
Certification

    Section 652.25 of the Interim Final Rule provided that pursuant to 
an agreement with NRCS, an organization with an adequate accreditation 
program could provide an NRCS official with a list of individuals 
identified by that organization (referred to as a ``recommending 
organization'') as meeting NRCS criteria for specific practices or 
categories of technical service and recommend that NRCS

[[Page 69470]]

certify these individuals as technical service providers. NRCS received 
24 comments to this section.
    Comment: Eight commenters expressed support for the alternative 
application process as described in the Interim Final Rule, and three 
other commenters expressed support for NRCS recognition of private 
sector certification organizations but felt that NRCS should not act as 
a certifier. Two commenters wanted NRCS to offer recommending 
organization various levels of recommendation of individuals. One 
commenter supported NRCS certification, one commenter supported State 
organizations as certification entities, and one commenter supported 
State-level agreements with recommending organizations. One commenter 
stated that individuals should not have to be certified crop advisors 
to be certified as a technical service provider, and one commenter 
stated that expectations of technical service providers should be the 
same whether or not they are independent or members of an organization. 
NRCS also received three comments stating that NRCS or certifying 
organization requirements were too stringent and would discourage 
potential sources of technical services.
    Response: As described earlier, NRCS has entered into Memoranda of 
Understanding with several organizations to be recommending 
organizations. NRCS will continue to work with these organizations and 
others to ensure that recommended individuals have the appropriate 
proficiencies to meet NRCS requirements for technical services 
delivery. NRCS has the responsibility under the statute to approve 
individuals and entities to provide technical services for USDA 
conservation programs, and, therefore, cannot delegate this 
responsibility to an outside organization. The process outlined in the 
Interim Final Rule and adopted in the final rule without changes 
provides NRCS the flexibility to avail itself of the expertise of 
professional organizations while ensuring the technical standards 
required by USDA conservation programs are met in a consistent manner. 
Furthermore, all applicants are treated equally and must meet the same 
standards for certification regardless of whether an applicant is a 
member of a recommending organization. If a recommending organization 
whose agreement with NRCS either expires without renewal or is 
terminated, the technical service providers recommended for 
certification through this recommending organization would not lose 
their certification. However, when these technical service providers 
seek to renew their certification, these technical service providers 
will need to meet current qualification standards and apply through the 
prescribed application process. NRCS will develop MOUs with 
recommending organizations at the appropriate level within its 
organizational structure. Therefore, no changes have been made to this 
section in response to these comments.

Section 652.26 Certification Renewal

    Comment: Section 652.26 of the Interim Final Rule provided a 
process for individuals and entities to renew their certification as 
technical service providers. NRCS received 9 comments on this section. 
Five commenters expressed support for a finite time limit for 
certification and believed that the time limit should match the 
continuing education cycle time limits of private sector certification. 
Three commenters disagreed with the 3-year limit to certification and 
felt that a 5-year limit would lower costs. One commenter believed that 
NRCS needs to provide criteria for certification renewal.
    Response: NRCS has modified this section slightly to allow 
certifications to remain valid for a time period specified by NRCS in 
the Certification Agreement, not to exceed 3 years, and automatically 
expire unless they are renewed for an additional time period prior to 
expiration. By providing a time period of up to 3 years, NRCS has the 
flexibility to coordinate certification time frame with other 
requirements that a technical service provider may need to meet. Since 
State laws change frequently, and NRCS updates its standards and 
specifications regularly, NRCS believes that a 5-year time frame is too 
long a time period as a certification time frame, and the shorter time 
frame allows NRCS to ensure that technical service providers are 
current in their professional credentials. NRCS will provide through 
TechReg the specific requirements for certification renewal for each 
conservation practice as it does for certification.

Subpart C Decertification

    Comment: Subpart C of the Interim Final Rule established the NRCS 
policy and procedures for decertification. NRCS received 21 comments to 
this subpart. Seven commenters expressed support for the subpart while 
seven commenters expressed concern that the decertification policy is 
inadequate, requesting that decertification be clearly linked to 
quality assurance criteria and that NRCS should clarify the conditions 
under which a technical service provider will be decertified. Two 
commenters emphasized that decertification should be a formal process, 
two commenters believed that technical service providers should be able 
to appeal decertification decisions to the Department's National 
Appeals Division, one commenter supported the possibility of permanent 
decertification for especially egregious action, and one commenter 
requested clarification about how contracted work would be completed if 
the technical service provider was decertified mid-performance.
    Response: In response to these comments, NRCS slightly modified 
Sec.  652.32 to clarify the reasons for which a technical service 
provider could be decertified, including matters encountered during 
NRCS quality assurance reviews. In particular, if a technical service 
provider, or someone acting on behalf of the technical service provider 
fails to meet NRCS standards and specifications in the provision of 
technical services; violates the terms of the Certification Agreement; 
engages in a scheme or device to defeat the purposes of this part, 
including, but not limited to, coercion, fraud, misrepresentation, or 
providing incorrect or misleading information; or commits any other 
action of a serious or compelling nature as determined by NRCS that 
demonstrates the technical service provider's inability to fulfill the 
terms of the Certification Agreement or in providing quality technical 
services under this part, that TSP would be decertified. NRCS added the 
phrase ``someone acting on behalf of the technical service provider'' 
to clarify that a private entity TSP or public agency TSP could be held 
accountable for the actions of individuals working under their 
auspices.
    Technical service providers are not participants and therefore, the 
National Appeals Division does not have jurisdiction over 
decertification decisions affecting technical service providers. The 
decertification process provides one level of appeal to ensure due 
process. NRCS needs sufficient time to review the merits of an appeal, 
and thus has increased the time period in Sec.  652.35 of the final 
rule for a State Conservationist decision from 30 days to 40 days. 
Additionally, in Sec.  652.38(b) of the Interim Final Rule, an entity 
or public agency was required to ``promptly'' amend its Certification 
Agreement to remove decertified individuals from the Certification 
agreement. NRCS believes that the time period intended by the term 
``promptly'' needed to clarified, and thus in the final

[[Page 69471]]

rule, NRCS has specified the time frame ``within 10 calendar days.'' 
All other time frames have remained as set forth in the Interim Final 
Rule. NRCS believes that the decertification process in the final rule 
provides an administrative process that adequately balances a TSP's 
right to due process with the need to decertify a TSP who provides 
substandard performance within a reasonable period of time.
    NRCS believes that three years is an acceptable time frame for 
decertification. This time frame corresponds to the time period for 
suspension and debarment under the Federal Government's uniform 
suspension and debarment regulations. Once the term of the 
decertification has transpired, an individual or entity may apply for 
certification, and will need to meet the current requirements to be 
certified.

Regulatory Certifications

Executive Order 12866

    Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), 
it has been determined that this final rule is a significant regulatory 
action and has been reviewed by the Office of Management and Budget 
(OMB). Pursuant to Sec.  6(a)(3) of Executive Order 12866, NRCS 
conducted an economic analysis of the potential impacts associated with 
this rulemaking, and included the analysis as part of a Regulatory 
Impact Analysis document prepared for this final rule. The analysis 
estimates that the technical service provider process will have a 
beneficial impact on the Nation's natural resources by accelerating 
adoption of conservation practices. New information included in this 
analysis but not considered in the analysis associated with the interim 
final rule is the cost for participant-selected TSP program oversight 
and administration, estimated at an additional $24 million to $26 
million per year. A copy of this analysis is available upon request 
from Angel Figueroa, Technical Service Provider Coordinator, Natural 
Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-
2890, or by e-mail to <a href="/cdn-cgi/l/email-protection#87e6e9e0e2eba9e1eee0f2e2f5e8e6c7f2f4e3e6a9e0e8f1"><span class="__cf_email__" data-cfemail="c0a1aea7a5aceea6a9a7b5a5b2afa180b5b3a4a1eea7afb6">[email protected]</span></a>; attn: Technical Service 
Provider Assistance--Economic Analysis, or at the following web 
address: http://www.nrcs.usda.gov.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. This rule will result in a few, mostly administrative changes 
from the interim final rule currently in effect that are expected to 
improve program management and oversight. The economic analysis 
accompanying this rulemaking includes new estimates for the 
administrative costs of program oversight of participant-selected TSPs. 
These costs range from $24 million to $26 million per year.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Executive Order 12988

    This final rule has been reviewed in accordance with Executive 
Order 12988. The provisions of this final rule are not retroactive. The 
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. Nevertheless, in the event that such conflict is identified, the 
provisions of this final rule preempt State and local laws to the 
extent such laws are inconsistent with this rule.

Regulatory Flexibility Act

    Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, it 
has been determined that this rule will not have a significant impact 
on a substantial number of small entities as defined by the Act. This 
rule sets forth the process by which entities could, on a voluntary 
basis, become certified providers. Therefore, a regulatory flexibility 
analysis is not required for this final rule. This final rule sets 
forth the policies and procedures for the provision of technical 
service provider assistance, which involves the voluntary participation 
of technical service providers.
    Pursuant to Section 2702 of the 2002 Farm Bill, the Secretary 
``shall use the authority provided under section 808(2) of title 5, 
United States Code.'' As required by 5 U.S.C. 808(2), NRCS hereby finds 
that additional public notice and comment prior to the effective date 
of this final rule are unnecessary and contrary to the public interest. 
Even though proposed rulemaking was not required for this rulemaking, 
NRCS published in the Federal Register an Interim Final Rule on 
November 22, 2002, an Amendment on March 24, 2003, and a second 
Amendment on July 9, 2003, all three of which requested public comment. 
In this final rule, NRCS responds to the comments received during the 
comment period for these three previous rulemakings. Thus, NRCS does 
not believe that additional public notice through 5 U.S.C. 808(1) is 
necessary prior to the effective date of this final rule. NRCS has 
determined that it is in the public interest for this rule to be in 
effect upon its publication in the Federal Register.

National Environmental Policy Act

    The regulations promulgated by this rule do not authorize any 
action that may negatively affect the human environment. Accordingly, 
an analysis of impacts under the National Environmental Policy Act has 
not been performed. The technical service provider process 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 2002 Farm Bill requires that the promulgation 
of regulations and the administration of Title II of said act 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 and the forms, and other information 
collection activities needed to administer technical service provider 
assistance 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 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 
public use.

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

[[Page 69472]]

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 
final rule as not major.

Civil Rights Impact Analysis

    A Civil Rights Impact Analysis has been completed regarding this 
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 Angel Figueroa, 
Technical Service Provider Coordinator, Natural Resources Conservation 
Service, P.O. Box 2890, Washington, DC 20013-2890, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#24454a4341480a424d435141564b4564515740450a434b52"><span class="__cf_email__" data-cfemail="35545b5250591b535c524050475a5475404651541b525a43">[email protected]</span></a>; attn: 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 is amended by 
revising part 652 to read as follows:

PART 652--TECHNICAL SERVICE PROVIDER ASSISTANCE

Subpart A--General Provisions

Sec.
652.1 Applicability.
652.2 Definitions.
652.3 Administration.
652.4 Technical service standards.
652.5 Participant acquisition of technical services.
652.6 Department delivery of technical services.
652.7 Quality assurance.

Subpart B--Certification

652.21 Certification criteria and requirements.
652.22 Certification process for individuals.
652.23 Certification process for private-sector entities.
652.24 Certification process for public agencies.
652.25 Alternative application process for individual certification.
652.26 Certification renewal.

Subpart C--Decertification

652.31 Policy.
652.32 Causes for decertification.
652.33 Notice of proposed decertification.
652.34 Opportunity to contest decertification.
652.35 State Conservationist decision.
652.36 Appeal of decertification decision.
652.37 Period of decertification.
652.38 Scope of decertification.
652.39 Mitigating factors.
652.40 Effect of decertification.
652.41 Effect of filing deadlines.
652.42 Recertification.

    Authority: 16 U.S.C. 3842.

Subpart A--General Provisions


Sec.  652.1  Applicability.

    (a) The regulations in this part set forth the policies, 
procedures, and requirements related to delivery of technical 
assistance by individuals and entities other than the Department, 
hereinafter referred to as technical service providers. 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 either directly or, at the option of the producer, 
through payment to the producer for an approved third party provider. 
This regulation defines how a participant acquires technical service 
from a third party technical service provider, sets forth a 
certification and decertification process, and establishes a method to 
make payments for technical services.
    (b) Technical service providers may provide technical assistance in 
the planning, design, installation, and check-out of conservation 
practices applied on private land or where allowed by conservation 
program rules on public land where there is a direct private land 
benefit.
    (c) The Chief, NRCS, may implement this part in any of the fifty 
states, District of Columbia, the Commonwealth of Puerto Rico, Guam, 
the Virgin Islands, American Samoa and the Commonwealth of the Northern 
Marianna Islands.


Sec.  652.2   Definitions.

    The following definitions apply to this part and all documents 
issued in accordance with this part, unless specified otherwise:
    Approved list means the list of individuals, private sector 
entities, or public agencies certified by NRCS to provide technical 
services to a participant.
    Certification means the action taken by NRCS to approve:
    (1) An individual as meeting the minimum NRCS criteria for 
providing technical service for conservation planning or a specific 
conservation practice or system; or
    (2) An entity or public agency as having an employee or employees 
that meet the minimum NRCS criteria for providing technical service for 
conservation planning or a specific conservation practice or system.
    Chief means the Chief of NRCS or designee.
    Conservation practice means a specified treatment, such as a 
structural or vegetative practice, or a land management practice, that 
is planned and applied according to NRCS standards and specifications.
    Contribution agreement means the instrument used to acquire 
technical services under the authority of 7 U.S.C. 6962a.
    Cooperative agreement means the same as that term is defined in the 
Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
    Department means the Natural Resources Conservation Service, the 
Farm Service Agency, or any other agency or instrumentality of the 
United States Department of Agriculture that is assigned responsibility 
for all or a part of a conservation program subject to this part.
    Entity means a corporation, joint stock company, association, 
cooperative, limited partnership, limited liability partnership, 
limited liability company, nonprofit organization, a member of a joint 
venture, or a member of a similar organization.
    Participant means a person who is eligible to receive technical or 
financial assistance under a conservation program covered by this rule.
    Procurement contract means the same as the term ``contract'' means 
under the Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301 
et seq.
    Program contract means the document that specifies the rights and 
obligations of any individual or entity that has been accepted for 
participation in a Title XII conservation program.
    Public agency means a unit or subdivision of Federal, State, local, 
or Tribal government, other than the Department.
    Recommending organization means a professional organization, 
association, licensing board or similar organization with which NRCS 
has entered into an agreement to recommend qualified individuals for 
NRCS certification as technical service providers for specific 
technical services.

[[Page 69473]]

    Secretary means the Secretary of the United States Department of 
Agriculture.
    State Conservationist means the NRCS employee authorized to direct 
and supervise NRCS activities in a State, the Caribbean Area, or the 
Pacific Basin Area.
    Technical service means the technical assistance provided by 
technical service providers, including conservation planning, and/or 
the design, layout, installation, and check-out of approved 
conservation practices.
    Technical service provider means an individual, entity, or public 
agency either:
    (1) Certified by NRCS and placed on the approved list to provide 
technical services to participants; or,
    (2) Selected by the Department to assist the Department in the 
implementation of conservation programs covered by this part through a 
procurement contract, contribution agreement, or cooperative agreement 
with the Department.
    Written agreement means the document that specifies the rights and 
obligations of any individual or entity that has been authorized by 
NRCS to receive conservation planning assistance without having a 
program contract.


Sec.  652.3  Administration.

    (a) As provided in this part, the Department will provide technical 
assistance to participants directly, or at the option of the 
participant, through a technical service provider in accordance with 
the requirements of this part.
    (b) The Chief, NRCS, will direct and supervise the administration 
of the regulations in this part.
    (c) NRCS will:
    (1) Provide overall leadership and management for the development 
and administration of a technical service provider process;
    (2) Consult with the Farm Service Agency and other appropriate 
agencies and entities concerning the availability and utilization of 
technical service providers and the implementation of technical 
service;
    (3) Establish policies, procedures, guidance, and criteria for 
certification, recertification, decertification, certification renewal, 
and implementation of the use of technical service providers; and
    (4) Establish a process for verifying information provided to NRCS 
under this part.
    (d) The Department will not make payments under a program contract 
or written agreement with a participant for technical services provided 
by a technical service provider unless the technical service provider 
is certified by NRCS for the services provided and is identified on the 
approved list.
    (e) The Department may enter into procurement contracts, 
contribution agreements, cooperative agreements, or other appropriate 
instruments to assist the Department in providing technical assistance 
when implementing conservation programs covered by this part. The 
Department will ensure that such instruments contain the qualification 
and performance criteria necessary to ensure quality implementation of 
the goals and objectives of these conservation programs; therefore, 
when the Department obtains assistance from a technical service 
provider in this manner, the technical service provider is authorized 
to provide technical services and receive payment even if such 
technical service provider is not certified in accordance with subpart 
B nor identified on the approved list.
    (f) When a participant acquires technical services from a technical 
service provider, the Department is not a party to the agreement 
between the participant and the technical service provider. To ensure 
that quality implementation of the goals and objectives of the 
conservation programs are met, the technical service provider must be 
certified by NRCS in accordance with subpart B of this part and 
identified on the approved list. Upon request of NRCS, technical 
service providers are required to submit copies of all transcripts, 
licensing, and certification documentation.


Sec.  652.4  Technical service standards.

    (a) All technical services provided by technical service providers 
must meet USDA standards and specifications as set forth in 
Departmental manuals, handbooks, guides, and other references for soils 
mapping and natural resources information, conservation planning, 
conservation practice application, and other areas of technical 
assistance.
    (b) The Department will only pay a participant for technical 
services provided in accordance with established NRCS standards, 
specifications, and requirements. The Department must approve all new 
technologies and innovative practices, including interim standards and 
specifications, prior to a technical service provider initiating 
technical services for those technologies and practices.
    (c) A technical service provider must assume responsibility in 
writing for the particular technical services provided. Technical 
services provided by the technical service provider must:
    (1) Comply with all applicable Federal, State, Tribal, and local 
laws and requirements;
    (2) Meet applicable Department standards, specifications, and 
program requirements;
    (3) Be consistent with the particular conservation program goals 
and objectives for which the program contract was entered into by the 
Department and the participant; and
    (4) Incorporate alternatives that are both cost effective and 
appropriate to address the resource issues. Conservation alternatives 
will meet the objectives for the program and participant to whom 
assistance is provided.
    (d) Technical service providers are responsible for the technical 
services provided, including any costs, damages, claims, liabilities, 
and judgments arising from past, present, and future negligent or 
wrongful acts or omissions of the technical service provider in 
connection with the technical service provided.
    (e) The Department will not be in breach of any program contract or 
written agreement if it fails to implement conservation plans or 
practices or make payment for conservation plans or practices resulting 
from technical services that do not meet USDA standards and 
specifications or are not consistent with program requirements.
    (f) The participant is responsible for complying with the terms and 
conditions of the program contract or written agreement, which includes 
meeting USDA technical standards and specifications for any technical 
services provided by a technical service provider.
    (g) The technical service provider shall report in the NRCS 
conservation accomplishment tracking system the appropriate data 
elements associated with the technical services provided to the 
Department or participant.
    (h) To the extent allowed under State or Tribal law, technical 
service providers may utilize the services of subcontractors to provide 
specific technical services or expertise needed by the technical 
service provider, provided that the subcontractors are certified by 
NRCS in accordance with this part for the particular technical services 
to be provided and the technical services are provided in terms of 
their Certification Agreement. Payments will not be made for any 
technical services provided by uncertified subcontractors, except when 
such technical services are provided under the provisions of a 
procurement contract, cooperative agreement, or contribution agreement 
with the NRCS.

[[Page 69474]]

Sec.  652.5  Participant acquisition of technical services.

    (a) Participants may obtain technical assistance directly from the 
Department or, when available, from a technical service provider.
    (b) To acquire technical assistance directly from the Department, 
participants should contact their local USDA Service Center.
    (c) To acquire technical services from a technical service 
provider, participants must:
    (1) Enter into and comply with a program contract or a written 
agreement prior to acquiring technical services; and
    (2) Select a certified technical service provider from the approved 
list of technical service providers.
    (d) The Department may approve written agreements for technical 
assistance prior to program participation based on available funding 
and natural resource priorities as identified by the State 
Conservationist.
    (e) The technical assistance indicated in paragraph (d) may include 
the development of conservation plans suitable for subsequent 
incorporation into a program contract.
    (f) The Department will identify in the particular program contract 
or written agreement the payment provisions for technical service 
providers hired directly by the participant.
    (g) To obtain payment for technical services, participants must 
submit to the Department valid invoices, supporting documentation, and 
requests for payment. The Department will issue payment within 30 days 
of receiving these items. The Department may pay a participant for some 
or all of the costs associated with the technical services provided by 
a technical service provider hired by the participant or, upon receipt 
of an assignment of payment from the participant, make payment directly 
to the technical service provider.
    (h) Participants must authorize in writing to the Department the 
disclosure of their records on file with the Department that they wish 
to make available to specific technical service providers.
    (i) Payments for technical services will be made only one time for 
the same technical service provided unless, as determined by the 
Department, the emergence of new technologies or major changes in the 
participant's farming or ranching operations necessitate the need for 
additional technical services.
    (j) Payment rates for technical services acquired by participants. 
(1) NRCS will establish payment rates by calculating not-to-exceed 
rates for technical services. NRCS will calculate not-to-exceed rates 
using price data that it may acquire through various sources that it 
deems reliable.
    (2) Establishing not-to-exceed payment rates. (i) NRCS will analyze 
the pricing information using a standardized methodology.
    (ii) Not-to-exceed payment rates will be established nationally on 
a State by State basis for categories of technical services.
    (iii) NRCS will coordinate payment rates between adjacent States to 
ensure consistency where similar resource conditions and agricultural 
operations exist. Payment rates may vary to some degree between States 
due to differences in State laws, the cost of doing business, 
competition, and other variables.
    (iv) NRCS 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 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 not-to-exceed payment rate based on the 
Department's determination of the scope, magnitude, and timeliness of 
the technical services needed.


Sec.  652.6  Department delivery of technical services.

    (a) The Department may enter into a procurement contract, 
contribution agreement, cooperative agreement, or other appropriate 
instrument to assist the Department in providing technical assistance 
when implementing the conservation programs covered by this part.
    (b) The Department will ensure that such legal instruments contain 
qualification and performance criteria necessary to ensure quality 
implementation of these conservation programs. When the Department 
obtains assistance from a technical service provider through a 
procurement contract, contribution agreement, cooperative agreement, or 
other similar instrument, the technical service provider is authorized 
to provide technical services and receive payment even if such 
technical service provider is not certified in accordance with subpart 
B of this part nor identified on the approved list.
    (c) The Department will implement procurement contracts, 
contribution agreements, cooperative agreements, and other appropriate 
instruments in accordance with applicable Federal acquisition or USDA 
Federal assistance rules and requirements for competency, quality, and 
selection, as appropriate.
    (d) A technical service provider may not receive payment twice for 
the same technical service, such as once from a participant through a 
program contract or written agreement and then again through a separate 
contract or agreement made directly with the Department.
    (e) The Department will, to the extent practicable, ensure that the 
amounts paid for technical service under this part are consistent 
across conservation program areas, unless specific conservation program 
requirements include additional tasks.


Sec.  652.7  Quality assurance.

    (a) NRCS will review, in consultation with the Farm Service Agency, 
as appropriate, the quality of the technical services provided by 
technical service providers. As a requirement of certification, 
technical service providers must develop and maintain documentation in 
accordance with Departmental manuals, handbooks, and technical guidance 
for the technical services provided, and furnish this documentation to 
NRCS and the participant when the particular technical service is 
completed. NRCS may utilize information obtained through its quality 
assurance process, documentation submitted by the technical service 
provider, and other relevant information in determining how to improve 
the quality of technical service, as well as determining whether to 
decertify a technical service provider under subpart C of this part.
    (b) Upon discovery of a deficiency in the provision of technical 
service through its quality assurance process or other means, NRCS 
will, to the greatest extent practicable, send a notice to the 
technical service provider detailing the deficiency and requesting 
remedial action by the technical service provider. Failure by the 
technical service provider to promptly remedy the deficiency, or the 
occurrence of repeated deficiencies in providing technical services, 
may trigger the decertification process set forth in subpart C of this 
part. A failure by NRCS to identify a deficiency does not affect any 
action under the decertification process. Technical service providers 
are solely responsible for providing technical services that meet all 
NRCS standards and specifications.

[[Page 69475]]

Subpart B--Certification


Sec.  652.21  Certification criteria and requirements.

    (a) To qualify for certification an individual must:
    (1) Have the required technical training, education, and experience 
to perform the level of technical assistance for which certification is 
sought;
    (2) Meet any applicable professional or business licensing or 
similar qualification standards established by State or Tribal law;
    (3) Demonstrate, through documentation of training or experience, 
familiarity with NRCS guidelines, criteria, standards, and 
specifications as set forth in the applicable NRCS manuals, handbooks, 
field office technical guides, and supplements thereto for the planning 
and applying of specific conservation practices and management systems 
for which certification is sought; and
    (4) Not be decertified in any State under subpart C of this part at 
the time of application for certification.
    (b) To qualify for certification an entity or public agency must be 
authorized to provide such services in the jurisdiction and have a 
certified individual providing, in accordance with this part, technical 
services on its behalf.
    (c) A technical service provider, as part of the certification by 
NRCS, must enter into a Certification Agreement with NRCS specifying 
the terms and conditions of the certification, including adherence to 
the requirements of this part, and acknowledging that failure to meet 
these requirements may result in ineligibility to receive payments from 
the Department, either directly or through the participant, for the 
technical services provided or may result in decertification.
    (d) NRCS will certify Technical Service Providers for a time period 
specified by NRCS in the Certification Agreement, not to exceed 3 
years. Decertification and Renewal of Certification is administered in 
accordance with Sec.  652.26.
    (e) NRCS may, pursuant to 31 U.S.C. 9701, establish and collect 
fees for the certification of technical service providers.


Sec.  652.22  Certification process for individuals.

    (a) In order to be considered for certification as a technical 
service provider, an individual must:
    (1) Submit an Application for Certification to NRCS in accordance 
with this section;
    (2) Request certification through a recommending organization 
pursuant to Sec.  652.25; or
    (3) Request certification through an application submitted by a 
private-sector entity or public agency pursuant to Sec.  652.23 or 
Sec.  652.24, as appropriate.
    (b) The application must contain the documentation demonstrating 
that the individual meets all requirements of paragraph (a) of Sec.  
652.21.
    (c) NRCS will, within 60 days of receipt of an application, make a 
determination on the application submitted by an individual under 
paragraph (a)(1) of this section and in accordance with paragraph (a) 
of Sec.  652.21. If all requirements are met, NRCS will:
    (1) Enter into a Certification Agreement and certify the applicant 
as qualified to provide technical services for a specific practice, 
category, or categories of technical service;
    (2) Place the applicant on the list of approved technical service 
providers when certified; and
    (3) Make available to the public the list of approved technical 
service providers by practice or category of technical services.
    (d) NRCS may decertify an individual in accordance with the 
decertification process set forth in subpart C of this part.


Sec.  652.23  Certification process for private-sector entities.

    (a) A private sector entity that applies for certification must 
identify, and provide supporting documentation, that it has the 
requisite professional and business licensure within the jurisdiction 
for which it seek certification, and that it employs at least one 
individual, authorized to act on its behalf that:
    (1) Has received certification on an individual basis in accordance 
with Sec.  652.22; or
    (2) Seeks certification on an individual basis as part of the 
private-sector entity's certification and ensures that the requirements 
set forth in Sec.  652.21(a) are contained within the private-sector 
entity's application to support such certification.
    (b) NRCS will determine pursuant to Sec.  652.22 whether the 
individual(s) identified in the private-sector entity's application 
meets the certification standards set forth in Sec.  652.21 for the 
specific services the entity wishes to provide.
    (c) NRCS will, within 60 days of receipt of an application, make a 
determination on the application submitted by an entity. If NRCS 
determines that all requirements for the private-sector entity and the 
identified individual(s) are met, NRCS will complete the actions 
described in paragraphs (c)(1) through (c)(3) of Sec.  652.22.
    (d) The Certification Agreement entered into with the private-
sector entity shall:
    (1) Identify the certified individuals who are authorized to 
perform technical services on behalf of and under the auspices of the 
entity's certification;
    (2) Require that the entity has, at all times, an individual who is 
a certified technical service provider authorized to act on the 
entity's behalf;
    (3) Require that the entity promptly provide an amended 
Certification Agreement to NRCS for approval when the list of certified 
individuals performing technical services under its auspices changes;
    (4) Require that responsibility for any work performed by non-
certified individuals be assumed by a certified individual who is 
authorized to act on the entity's behalf; and
    (5) Require that the entity be legally responsible for the work 
performed by any individual working under the auspices of its 
certification.
    (e) NRCS may, in accordance with the decertification process set 
forth in this part, decertify the private sector entity, the certified 
individual(s) acting under the auspices of its certification, or both 
the private sector entity and the certified individual(s) acting under 
the auspices of its certification.


Sec.  652.24  Certification process for public agencies.

    (a) A public agency that applies for certification must identify, 
and provide supporting documentation, that it has the authority within 
the jurisdiction within which it seeks to provide technical services 
and an individual or individuals authorized to act on its behalf:
    (1) Has been certified as an individual in accordance with Sec.  
652.22; or
    (2) Seeks certification as an individual as part of the public 
agency's certification and sufficient information as set forth in Sec.  
652.21(a) is contained within the public agency's application to 
support such certification.
    (b) NRCS shall determine whether the individual identified in the 
public agency's application meets the certification standards set forth 
in Sec.  652.22.
    (c) NRCS will, within 60 days of receipt of an application, make a 
determination on the application submitted by a public agency. If NRCS 
determines that all requirements for the public agency and the 
identified

[[Page 69476]]

individual(s) are met, NRCS will perform the actions described in 
paragraph (c)(1) through (c)(3) of Sec.  652.22. The Certification 
Agreement entered into with the public agency shall:
    (1) Identify the certified individuals that are authorized to 
perform technical services on behalf of and under the auspices of the 
public agency's certification;
    (2) Require that the public agency have, at all times, an 
individual that is a certified technical service provider and is an 
authorized official of the public agency;
    (3) Require that the public agency promptly provide to NRCS for 
NRCS approval an amended Certification Agreement when the list of 
certified individuals performing technical services under its auspices 
changes;
    (4) Require that responsibility for any work performed by non-
certified individuals be assumed by a certified individual that is 
authorized to act on the public agency's behalf; and
    (5) Require that the public agency be legally responsible for the 
work performed by any individual working under the auspices of its 
certification.
    (d) NRCS may, in accordance with the decertification process set 
forth in subpart C of this part, decertify the public agency, the 
certified individual(s) acting under its auspices, or both the public 
agency and the certified individual(s) acting under its auspices.


Sec.  652.25  Alternative application process for individual 
certification.

    (a) NRCS may enter into an agreement, including a memorandum of 
understanding or other appropriate instrument, with a recommending 
organization that NRCS determines has an adequate accreditation program 
in place to train, test, and evaluate candidates for competency in a 
particular area or areas of technical service delivery and whose 
accreditation program NRCS determines meets the certification criteria 
as set forth for the technical services to be provided.
    (b) Recommending organizations will, pursuant to an agreement 
entered into with NRCS:
    (1) Train, test, and evaluate candidates for competency in the area 
of technical service delivery;
    (2) Recommend to NRCS individuals who it determines meet the NRCS 
certification requirements of Sec.  652.21(a) for providing specific 
practices or categories of technical services;
    (3) Inform the recommended individuals that they must meet the 
requirements of this part, including entering into a Certification 
Agreement with NRCS, in order to provide technical services under this 
part;
    (4) Reassess individuals that request renewal of their 
certification pursuant to Sec.  652.26 through the recommendation of 
the organization; and
    (5) Notify NRCS of any concerns or problems that may affect the 
organization's recommendation concerning the individual's 
certification, recertification, certification renewal, or technical 
service delivery.
    (c) Pursuant to an agreement with NRCS, a recommending organization 
may provide to the appropriate NRCS official a current list of 
individuals identified by the recommending organization as meeting NRCS 
criteria as set forth in Sec.  652.21(a) for specific practices or 
categories of technical service and recommend that the NRCS official 
certify these individuals as technical service providers in accordance 
with this part.
    (d) NRCS will, within 60 days, make a determination on the 
recommendation for certification issued by the recommending 
organization. If NRCS determines that all requirements for 
certification are met by the recommended individual(s), NRCS will 
perform the actions described in paragraphs (c)(1) through (c)(3) of 
Sec.  652.22.
    (e) NRCS may terminate an agreement with a recommending 
organization if concerns or problems with its accreditation program, 
its recommendations for certification, or other requirements under the 
agreement arise.


Sec.  652.26  Certification renewal.

    (a) NRCS certifications are in effect for a time period specified 
by NRCS in the Certification Agreement, not to exceed 3 years and 
automatically expire unless they are renewed for an additional time 
period in accordance with this section.
    (b) A technical service provider may request renewal of an NRCS 
certification by:
    (1) Submitting a complete certification renewal application to NRCS 
or through a private sector entity, a public agency, or a recommending 
organization to NRCS at least 60 days prior to expiration of the 
current certification;
    (2) Providing verification on the renewal form that the 
requirements of this part are met; and
    (3) Agreeing to abide by the terms and conditions of a 
Certification Agreement.
    (c) All certification renewals are in effect for a time period 
specified by NRCS in the Certification Agreement, not to exceed three 
years and before expiration, may be renewed for subsequent time period 
in accordance with this section.

Subpart C--Decertification


Sec.  652.31  Policy.

    In order to protect the public interest, it is the policy of NRCS 
to maintain certification of those technical service providers who act 
responsibly in the provision of technical service, including meeting 
NRCS standards and specifications when providing technical service to 
participants. This section, which provides for the decertification of 
technical service providers, is an appropriate means to implement this 
policy.


Sec.  652.32  Causes for decertification.

    A State Conservationist, in whose State a technical service 
provider is certified to provide technical service, may decertify the 
technical service provider, in accordance with these provisions, if the 
technical service provider, or someone acting on behalf of the 
technical service provider:
    (a) Fails to meet NRCS standards and specifications in the 
provision of technical services;
    (b) Violates the terms of the Certification Agreement, including 
but not limited to, a demonstrated lack of understanding of, or an 
unwillingness or inability to implement, NRCS standards and 
specifications for a particular practice for which the technical 
service provider is certified, or the provision of technical services 
for which the technical service provider is not certified;
    (c) Engages in a scheme or device to defeat the purposes of this 
part, including, but not limited to, coercion, fraud, 
misrepresentation, or providing incorrect or misleading information; or
    (d) Commits any other action of a serious or compelling nature as 
determined by NRCS that demonstrates the technical service provider's 
inability to fulfill the terms of the Certification Agreement or 
provide technical services under this part.


Sec.  652.33  Notice of proposed decertification.

    The State Conservationist will send by certified mail, return 
receipt requested, to the technical service provider proposed for 
decertification a written Notice of Proposed Decertification, which 
will contain the cause(s) for decertification, as well as any 
documentation supporting decertification. In cases where a private 
sector entity or public agency is being notified of a proposed 
decertification,

[[Page 69477]]

any certified individuals working under the auspices of such 
organization who are also being considered for decertification will 
receive a separate Notice of Decertification and will be afforded 
separate appeal rights following the process set forth below.


Sec.  652.34  Opportunity to contest decertification.

    To contest decertification, the technical service provider must 
submit in writing to the State Conservationist, within 20 calendar days 
from the date of receipt of the Notice of Proposed Decertification, the 
reasons why the State Conservationist should not decertify, including 
any mitigating factors as well as any supporting documentation.


Sec.  652.35  State Conservationist decision.

    Within 40 calendar days from the date of the notice of proposed 
decertification, the State Conservationist will issue a written 
determination. If the State Conservationist decides to decertify, the 
decision will set forth the reasons for decertification, the period of 
decertification, and the scope of decertification. If the State 
Conservationist decides not to decertify the technical service 
provider, the technical service provider will be given written notice 
of that determination. The decertification determination will be based 
on an administrative record, which will be comprised of: the Notice of 
Proposed Decertification and supporting documents, and, if submitted, 
the technical service provider's written response and supporting 
documentation. Both a copy of the decision and administrative record 
will be sent promptly by certified mail, return receipt requested, to 
the technical service provider.


Sec.  652.36  Appeal of decertification decisions.

    (a) Within 20 calendar days from the date of receipt of the State 
Conservationist's decertification determination, the technical service 
provider may appeal, in writing, to the Chief of NRCS. The written 
appeal must state the reasons for appeal and any arguments in support 
of those reasons. If the technical service provider fails to appeal, 
the decision of the State Conservationist is final.
    (b) Final decision. Within 30 calendar days of receipt of the 
technical service provider's written appeal, the Chief or his designee, 
will make a final determination, in writing, based upon the 
administrative record and any additional information submitted to the 
Chief by the technical service provider. The decision of the Chief, or 
his designee, is final and not subject to further administrative 
review. The Chief's determination will include the reasons for 
decertification, the period of decertification, and the scope of 
decertification.


Sec.  652.37  Period of decertification.

    The period of decertification will not exceed three years in 
duration and will be decided by the decertifying official, either the 
State Conservationist or Chief, as applicable, based upon their 
weighing of all relevant facts and the seriousness of the reasons for 
decertification, mitigating factors, if any, and the following general 
guidelines:
    (a) For failures in the provision of technical service for which 
there are no mitigating factors, e.g., no remedial action by the 
technical service provider, a maximum period of three years 
decertification;
    (b) For repeated failures in the provision of technical assistance 
for which there are mitigating factors, e.g., the technical service 
provider has taken remedial action to the satisfaction of NRCS, a 
maximum period of one to two years decertification; and
    (c) For a violation of Certification Agreement terms, e.g., failure 
to possess technical competency for a listed practice, a period of one 
year or less, if the technical service provider can master such 
competency within a year period.


Sec.  652.38  Scope of decertification.

    (a) When the technical service provider is a private sector entity 
or public agency, the decertifying official may decertify the entire 
organization, including all the individuals identified as authorized to 
provide technical services under the auspices of such organization. The 
decertifying official may also limit the scope of decertification, for 
example, to one or more specifically named individuals identified as 
authorized to provide technical services under the organization's 
auspices or to an organizational element of such private sector entity 
or public agency. The scope of decertification will be set forth in the 
decertification determination and will be based upon the facts of each 
decertification action, including whether actions of particular 
individuals can be imputed to the larger organization.
    (b) In cases where specific individuals are decertified only, an 
entity or public agency must file within 10 calendar days an amended 
Certification Agreement removing the decertified individual(s) from the 
Certification Agreement. In addition, the entity or public agency must 
demonstrate that, to the satisfaction of the State Conservationist, the 
entity or public agency has taken affirmative steps to ensure that the 
circumstances resulting in decertification have been addressed.


Sec.  652.39  Mitigating factors.

    In considering whether to decertify, the period of decertification, 
and scope of decertification, the deciding official will take into 
consideration any mitigating factors. Examples of mitigating factors 
include, but are not limited to the following:
    (a) The technical service provider worked, in a timely manner, to 
correct any deficiencies in the provision of technical service;
    (b) The technical service provider took the initiative to bring any 
deficiency in the provision of their technical services to the 
attention of NRCS and sought NRCS advice to remediate the situation; 
and
    (c) The technical service provider took affirmative steps to 
prevent any failures in the provision of technical services from 
occurring in the future.


Sec.  652.40  Effect of decertification.

    (a) The Department will not make payment under a program contract 
for the technical services of a decertified technical service provider 
that were provided during the period of decertification. Likewise, NRCS 
will not procure, or otherwise enter into an agreement for, the 
services of a decertified technical service provider during the period 
of decertification.
    (b) National decertification list. NRCS shall maintain a current 
list of decertified technical service providers. NRCS shall remove 
decertified providers from the list of certified providers. 
Participants may not hire a decertified technical service provider. It 
is the participant's responsibility to check the decertified list 
before hiring a technical service provider. Decertification of a 
technical service provider in one State decertifies the technical 
service provider from providing technical services under current 
programs in all States, the Caribbean Area, and the Pacific Basin Area.


Sec.  652.41  Effect of filing deadlines.

    A technical service provider's failure to meet the filing deadlines 
under this subpart will result in the forfeiture of appeal rights. All 
filings must be received by NRCS no later than the close of business (5 
p.m.) the last day of the filing period.

[[Page 69478]]

Sec.  652.42  Recertification.

    A decertified technical service provider may apply to be re-
certified under the certification provisions of this part after the 
period of decertification has expired. A technical service provider may 
not utilize the certification renewal process in an attempt to be 
recertified after being decertified.

    Signed in Washington, DC, on November 12, 2004.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 04-25990 Filed 11-26-04; 8:45 am]
BILLING CODE 3410-16-P


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