69450 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation 

Service 

7 CFR Part 652 

Technical Service Provider Assistance

AGENCY: Natural Resources 

Conservation Service, USDA.

ACTION: Final rule.

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: 

angel.figueroa@usda.gov, 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 

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

Change description 

Interim final rule Final rule 

Section No. Heading Section No. Heading 

fl Sections on definitions and 

applicability exchanged places.

7 CFR 652.1 .....

7 CFR 652.2 .....

Definitions .....................................

Applicability ..................................

7 CFR 652.1 .....

7 CFR 652.2 .....

Applicability. 

Definitions. 

fl Exception section content incorporated in section on Department acquisition of services, eliminating the need for 

this section.

7 CFR 652.8 ..... Limited Exception to Certification 

Requirements for State, Local, 

and Tribal Government Partners.

7 CFR 652.6 ..... Department Delivery of Technical 

Services. 

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, § 652.1 of 

the Interim Final Rule has been moved 

to § 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, § 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, § 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, 

§ 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 timeframe originally set forth in the 

preamble of the Interim Final Rule. Of 

69452 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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, § 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 § 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, § 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 

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

69454 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 § 652.3 

consists of several paragraphs. In order 

to streamline its response, NRCS will 

address the comments by topics within 

each paragraph comprising § 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 § 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 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 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 § 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 § 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 § 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 § 652.6, NRCS will utilize a twoprong 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, 

69456 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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-toexceed 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, 

§ 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, § 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 

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

§ 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 nongovernmental 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 lowcost 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 ‘‘lowcost 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 § 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, 

69458 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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: 

• 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. 

• 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. 

• 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. 

• Twelve commenters recommended 

utilizing both private and public sources 

of cost data to establish payment rates. 

• 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. 

• Four commenters recommended 

that NRCS introduce a voucher system. 

• Three commenters recommended 

that NRCS establish a fee structures 

based on a per acre rate or per plan rate. 

• Three commenters advised against 

using a lowest-cost basis for acquiring 

professional services. 

• Three commenters recommended 

that NRCS provide incentive payments 

for disadvantaged groups. 

• Three commenters recommended 

that NTE rates as cap for the acceptable 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69459

bid obtained pursuant to NRCS 

acquisition process. 

• Three commenters recommended 

that payments be based on specific 

practices or tasks. 

• 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. 

• 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. 

• Three commenters recommended 

utilizing an hourly rate with locally-set 

caps on the amount that can be paid. 

• 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. 

• 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 

69460 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

comments to § 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 § 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 

§ 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 § 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 

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

69462 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 

§ 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 § 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 § 652.6(c) 

have been moved to § 652.6(d), and the 

new § 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 

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

§ 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 § 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, 

69464 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 

§ 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 § 652.2(c), a new sentence 

to § 652.2(f) regarding submission of 

education and licensing documentation, 

and a new provision in § 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, § 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 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69465

requirement from 50% or allowing inkind 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 § 652.6, Department 

delivery of technical services. In 

particular, NRCS has established a twoprong system for technical services 

delivery. NRCS has modified § 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 

§ 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, 

§ 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 singleState 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 selfcertification, 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 selfcertification 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 

69466 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 

§ 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 § 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, § 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.

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

69468 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

requirements, State-specific 

requirements must be met and a Stateby-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 longestablished 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 § 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 § 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-theground outcomes related to changes in 

water quality or phosphorus index 

changes. One commenter stated that the 

review process should be either multicounty 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 §§ 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 § 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 

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

69470 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 midperformance. 

Response: In response to these 

comments, NRCS slightly modified 

§ 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 

§ 652.35 of the final rule for a State 

Conservationist decision from 30 days 

to 40 days. Additionally, in § 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 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 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 § 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 participantselected 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 email to angel.figueroa@usda.gov; 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 

69472 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 email to angel.figueroa@usda.gov; 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.

■ 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:

■ 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 privatesector 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

§ 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.

§ 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. 

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

§ 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.

§ 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.

69474 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

§ 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 notto-exceed payment rate based on the 

Department’s determination of the 

scope, magnitude, and timeliness of the 

technical services needed.

§ 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.

§ 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.

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69475

Subpart B—Certification

§ 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 § 652.26. 

(e) NRCS may, pursuant to 31 U.S.C. 

9701, establish and collect fees for the 

certification of technical service 

providers.

§ 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 

§ 652.25; or 

(3) Request certification through an 

application submitted by a privatesector entity or public agency pursuant 

to § 652.23 or § 652.24, as appropriate. 

(b) The application must contain the 

documentation demonstrating that the 

individual meets all requirements of 

paragraph (a) of § 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 

§ 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.

§ 652.23 Certification process for privatesector 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 

§ 652.22; or 

(2) Seeks certification on an 

individual basis as part of the privatesector entity’s certification and ensures 

that the requirements set forth in 

§ 652.21(a) are contained within the 

private-sector entity’s application to 

support such certification. 

(b) NRCS will determine pursuant to 

§ 652.22 whether the individual(s) 

identified in the private-sector entity’s 

application meets the certification 

standards set forth in § 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 

§ 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.

§ 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 § 652.22; or 

(2) Seeks certification as an individual 

as part of the public agency’s 

certification and sufficient information 

as set forth in § 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 

§ 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 

69476 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

individual(s) are met, NRCS will 

perform the actions described in 

paragraph (c)(1) through (c)(3) of 

§ 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.

§ 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 § 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 

§ 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 § 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 

§ 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.

§ 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

§ 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.

§ 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.

§ 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, 

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

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

69478 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

§ 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