This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

6839 

Vol. 75, No. 29 

Friday, February 12, 2010 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 652 

RIN 0578–AA48 

Technical Service Provider Assistance 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Final rule. 

SUMMARY: This Final rule amends the 

Natural Resources Conservation Service 

(NRCS) regulations for technical service 

provider (TSP) provisions under the 

Food Security Act of 1985. The Food, 

Conservation, and Energy Act of 2008 

(2008 Act) amended the TSP provisions, 

and NRCS published an interim final 

rule on January 16, 2009, to incorporate 

these changes. This final rule responds 

to public comments received to the 

interim final rule, and confirms the 

changes made to the TSP regulations, 

with minor adjustments. 

DATES: Effective date: This rule is 

effective February 12, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Eggers, Acting Team Leader, 

Technical Service Provider Team, 

Department of Agriculture, Natural 

Resources Conservation Service, 1400 

Independence Avenue, SW., Room 5236 

South Building, Washington, DC 20250; 

telephone: (202) 720–6731; fax: (202) 

720–5334; or e-mail: 

TSP2008@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

Pursuant to Executive Order 12866, 

the Office of Management and Budget 

determined that this final rule is not a 

significant regulatory action. NRCS 

conducted an economic analysis of the 

potential impacts associated with this 

program when it promulgated the 

January 16, 2009, interim final rule. A 

copy of the analysis is available upon 

request from Barbara Eggers, Acting 

Team Leader, Technical Service 

Provider Team, Department of 

Agriculture, Natural Resources 

Conservation Service, 1400 

Independence Avenue, SW., Room 5236 

South Building, Washington, DC 20250. 

Regulatory Flexibility Act 

NRCS has determined that the 

Regulatory Flexibility Act is not 

applicable to this final rule because 

NRCS is not required by 5 U.S.C. 553, 

or any other provision of law, to publish 

a notice of proposed rulemaking with 

respect to the subject matter of this rule. 

Environmental Analysis 

The regulations promulgated by this 

final rule establish a process of using 

TSPs to provide technical assistance to 

participants in certain USDA 

conservation programs. The regulations 

do not take or authorize any actions that 

will have any effect on the human 

environment. Accordingly, a separate 

analysis for this rulemaking under the 

National Environmental Policy Act is 

not required. 

Civil Rights Impact Analysis 

NRCS has determined through a Civil 

Rights Impact Analysis that the issuance 

of this final rule discloses no 

disproportionately adverse impact for 

minorities, women, or persons with 

disabilities. The data presented 

indicates producers who are members of 

the historically underserved groups 

have participated in USDA programs at 

parity with other producers. 

Extrapolating from historical 

participation data, it is reasonable to 

conclude that USDA programs, 

including TSPs, will continue to be 

administered in a non-discriminatory 

manner. Outreach and communication 

strategies are in place to ensure all 

producers will be provided the same 

information to allow them to make 

informed compliance decisions 

regarding the use of their lands that will 

affect their participation in USDA 

programs. TSP applies to all persons 

equally regardless of race, color, 

national origin, gender, sex, or disability 

status. Therefore, the TSP rule has no 

adverse civil rights implications. Copies 

of the Civil Rights Impact Analysis may 

be obtained from Barbara Eggers, Acting 

Team Leader, Technical Service 

Provider Team, Department of 

Agriculture, Natural Resources 

Conservation Service, 1400 

Independence Avenue, SW., Room 5236 

South Building, Washington, DC 20250. 

Paperwork Reduction Act 

Section 2904 of the 2008 Act provides 

that the promulgation of regulations and 

the administration of Title II of this Act 

will be made without regard to chapter 

35 of Title 44 of the U.S.C., also known 

as the Paperwork Reduction Act. 

Therefore, NRCS is not reporting 

recordkeeping or estimated paperwork 

burden associated with this final rule. 

Government Paperwork Elimination Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act and the Freedom to E– 

File Act, which require government 

agencies in general to provide the public 

the option of submitting information or 

transacting business electronically to 

the maximum extent possible. To better 

accommodate public access, NRCS has 

developed an online application and 

information system, TechReg, for use by 

the public and TSPs. 

Executive Order 12988 

This final rule has been reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. The provisions of 

this final rule are not retroactive. The 

provisions of this final rule preempt 

State and local laws to the extent such 

laws are inconsistent with this final 

rule. Before an action may be brought in 

a Federal court of competent 

jurisdiction, the administrative appeal 

rights afforded persons at 7 CFR part 

614 must be exhausted. 

Executive Order 13132 

This final rule has been reviewed in 

accordance with the requirements of 

Executive Order 13132, Federalism. 

NRCS has determined that this final rule 

conforms with the Federalism 

principles set forth in the Executive 

Order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities on the 

various levels of government. Therefore, 


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6840 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

NRCS concludes that this final rule does 

not have Federalism implications. 

Executive Order 13175 

This final rule has been reviewed in 

accordance with Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments. NRCS has 

assessed the impact of this final rule on 

Indian tribal governments and has 

concluded that this rule will not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

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. 

Unfunded Mandates Reform Act of 1995 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4, NRCS assessed the effects of 

this rulemaking action on State, local, 

and tribal governments, and the public. 

This action does not compel the 

expenditure of $100 million or more by 

any State, local, or tribal governments, 

or anyone in the private sector; 

therefore, a statement under section 202 

of the Unfunded Mandates Reform Act 

of 1995 is not required. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

Section 2904(c) of the 2008 Act 

requires that NRCS use the authority in 

section 808(2) of Title 5, U.S.C., which 

allows an agency to forgo the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 usual 

congressional review delay of the 

effective date of a regulation if the 

agency finds that there is a good cause 

to do so. NRCS hereby determines that 

it has good cause to do so in order to 

meet the congressional intent to have 

the conservation programs authorized or 

amended by Title II in effect as soon as 

possible. Accordingly, this rule is 

effective upon filing for public 

inspection by the Office of the Federal 

Register. 

Discussion of Program 

Background 

NRCS is issuing a final rule for the 

TSP assistance regulation at 7 CFR part 

652. NRCS published an interim final 

rule in the Federal Register on January 

16, 2009 (74 FR 2800), to implement 

changes made as a result of the 2008 

Act. This final rule responds to 

comments made during the interim final 

rule public comment period and makes 

minor adjustments to the TSP regulation 

at 7 CFR part 652. 

NRCS utilizes its technical expertise 

to provide information to eligible 

participants (producers, land owners, or 

entities) who apply to or are eligible to 

participate in conservation programs to 

help them make land management 

decisions and to implement 

conservation practices and systems. 

Through its conservation planning 

process, NRCS helps the participant 

develop a conservation plan, and 

subject to the availability of funds, 

provides financial assistance to the 

eligible participant to implement 

conservation practices or systems. 

On November 29, 2004, NRCS 

published a final rule (69 FR 69450) on 

TSP assistance (TSP 2004 final rule) that 

creates the current regulatory structure 

for TSP implementation. The TSP 

regulation at 7 CFR part 652 is divided 

into three subparts. Subpart A sets forth 

the general provisions related to the 

delivery of technical services. Subpart B 

sets forth the certification criteria and 

the process NRCS utilizes to evaluate a 

TSP to determine whether such 

provider is eligible to provide technical 

assistance. Subpart C sets forth the 

process and causes under which a TSP 

may become decertified and, therefore, 

ineligible to provide technical services. 

The January 16, 2009, interim final 

rule only made changes to provisions in 

Subpart A of the TSP regulations. 

Subpart A describes how program 

participants choose TSPs and how 

program participants may receive 

payment from USDA for those services. 

Subpart A also describes how USDA 

expands its delivery of technical 

services to program participants to meet 

increased program participation. In 

particular, USDA follows existing 

procurement and financial assistance 

laws when it enters into transactions to 

expand the availability of technical 

services. 

The 2008 Act and the January 16, 2009, 

Interim Final Rule 

Section 2706 of the 2008 Act 

amended section 1242 of the Food 

Security Act of 1985 to ‘‘increase the 

availability and range of technical 

expertise available to eligible 

participants to plan and implement 

conservation measures.’’ In the interim 

final rule published on January 16, 

2009, NRCS amended 7 CFR part 652 to 

include changes made by section 7206 

of the 2008 Act as follows: 

• Covered Programs. The interim 

final rule incorporated reference to the 

Agricultural Management Assistance 

(AMA) program. Since the TSP rule 

only provides assistance for certain 

conservation activities, eligible 

activities under the AMA are limited to 

those related to conservation. 

• Technical Service Contracts. The 

interim final rule established that 

technical service contracts are available 

only to eligible participants who do not 

receive financial assistance through 

Title XII programs and AMA. In 

addition, the interim final rule specified 

that technical service contracts will only 

be available for technical assistance 

from TSPs for the planning, design, or 

installation of conservation practices. 

• NRCS Training of TSPs. The 

interim final rule clarified the role of 

NRCS in training and described the 

conditions and procedures by which 

NRCS provides training to third party 

providers to assist them in meeting the 

certification requirements for the 

different technical service categories 

established by NRCS policy. NRCS’ 

training to others is limited to matters 

concerning NRCS regulations, policies, 

procedures, processes, and business and 

technical tools unique to NRCS. 

• Related Technical Services. In the 

interim final rule, NRCS identified 

‘‘related technical assistance services’’ to 

include conservation planning 

documentation, payment scheduling 

and documentation, market survey 

information related to the establishment 

of easement compensation rates, and 

similar activities which result in timely 

implementation of conservation 

programs. 

• TSP Payment Rates. The interim 

final rule identified that the NRCS State 

offices determine fair and reasonable 

payment rates for TSP assistance using 

guidelines established by National 

Headquarters and available local NRCS 

cost, market, and procurement data. The 

interim final rule also indicated that 

NRCS emphasizes using market rate 

data, where available, to determine TSP 

payment rates. 

• Certification Requirements. Section 

2706 of the 2008 Act made a change to 

TSP certification requiring the Secretary 

of Agriculture to provide national 

criteria for the certification of third 

party providers and to approve any 

unique certification requirements that 

are proposed at the State level. The TSP 

rule already provided national criteria 

including that a TSP must meet State, 

tribal, and professional business 

licensing requirements. The interim 

final rule did not incorporate any 

additional criteria. However, NRCS 

clarified its policy that licensing and 


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State law requirements will be the only 

State-level certification criteria allowed. 

Overview of Public Comments 

NRCS received 25 responses 

encompassing 31 comments. The 

respondents included 14 State and local 

governmental agencies, 7 nongovernmental organizations, one tribe, 

and 3 individuals. The comments 

encompassed issues related to 

agreements, applicability, certification, 

definitions, general program rules, 

outreach, payments, procurement, and 

assistance to socially disadvantaged 

producers. NRCS has organized its 

response according to these topic areas. 

Agreements 

Comment: Nine respondents raised 

two concerns regarding TSP cooperative 

and contribution agreements. The 

respondents recommended: (1) NRCS 

use multi-year umbrella agreements; 

and (2) increased flexibility be provided 

to participants through TSP contract 

options. 

Additionally, three respondents 

encouraged NRCS to change its 

agreement policy to allow less than 50 

percent partner match under 

contribution and cooperative 

agreements. 

Response: 

Multi-year agreements. NRCS agrees 

with the comments that multi-year 

agreements can be more efficient since 

they can be amended yearly to reflect 

funding allocations, workload, agency 

capacity, and resource priorities. 

Section 2706 of the 2008 Act amended 

section 1242 of the Food Security Act of 

1985 to establish that an agreement 

between USDA and a third party 

provider will be for one year at a 

minimum, and not to exceed 3 years. 

NRCS is using the flexibility provided 

by this statutory amendment. Since 

NRCS has determined that its current 

policy addresses adequately the use of 

multi-year agreements, no changes were 

made in response to these comments. 

Increased Flexibility. The comments 

focused on utilizing agreements 

(contribution, cooperative, etc.) as a 

method to extend outreach efforts to 

historically underserved landowners, 

and the commenter’s belief that such 

outreach has not been sufficient in 

previous years. The respondents 

identified that conservation districts 

could assist with these outreach efforts 

by using flexibility in providing TSP 

contract options to participants directly 

through an agreement with a third party 

provider. 

However, the contracting and 

agreement regulations which 

respondents refer to as utilized for 

outreach are in actuality provisions of 

Federal contracting law that ensures 

sufficient technical services are 

available when NRCS carries out 

technical assistance. NRCS 

appropriately uses other authorities to 

specifically ensure outreach to 

historically underserved farmers. 

Specifically, under section 1244 of the 

Food Security Act of 1985, each of the 

NRCS conservation programs makes 

available funds to encourage program 

participation by beginning and socially 

disadvantaged farmers and ranchers. 

Additionally, NRCS has modified its 

ranking criteria under its various 

programs to ensure that small farm 

operations have full opportunity to 

participate. NRCS will utilize fully the 

flexibility to provide technical 

assistance to small farm operators, 

including historically underserved 

producers, through all available 

mechanisms, including agreements with 

conservation districts and others. No 

changes were made in response to these 

comments. 

Contribution Requirements. Three 

respondents encouraged NRCS to 

consider revising the policy to allow 

less than 50 percent match from 

partners under cooperative and 

contribution agreements. 

Section 714 of the Agriculture 

Appropriations Act for FY 2001 (Public 

Law 106–387) provided permanent 

authority codified at 7 U.S.C. 6962a for 

the Secretary to enter into cooperative 

arrangements with other entities to carry 

out activities of mutual interest. Title 7 

U.S.C. 6962a provides: 

Notwithstanding any other provision of 

law (including provisions of law requiring 

competition), the Secretary of Agriculture 

may hereafter enter into cooperative 

agreements (which may provide for the 

acquisition of goods or services, including 

personal services) with a State, political 

subdivision, or agency thereof, a public or 

private agency, organization, or any other 

person, if the Secretary determines the 

objectives of the agreement will: (1) serve a 

mutual interest of the parties in carrying out 

the programs administered by NRCS; and (2) 

all parties will contribute resources to the 

accomplishment of these objectives: 

Provided, that Commodity Credit Corporation 

funds obligated for such purposes will not 

exceed the level of obligation by the 

Commodity Credit Corporation for such 

purposes in FY 1998. 

NRCS identifies cooperative 

agreements entered into under section 

714 authority as ‘‘contribution 

agreements.’’ Under this authority, 

NRCS works with agencies and 

organizations throughout the country to 

implement its programs. 

On November 21, 2002, when NRCS 

published its initial rulemaking for TSP, 

NRCS established that they would only 

enter into a contribution agreement with 

a certified TSP if the TSP contributed at 

least 50 percent of the technical services 

needed to accomplish the goals of the 

project under which the contribution 

agreement is entered. This requirement 

is consistent with NRCS policy 

regarding matching requirements for all 

contribution agreements. In developing 

the policy, the agency determined that 

50 percent was the appropriate level of 

match requirement to ensure that 

implementation of the contribution 

agreement authority did not undermine 

the competitive financial assistance and 

procurement processes and helped 

show a mutuality of interest. 

On July 9, 2003, NRCS published an 

amendment to 7 CFR part 652 providing 

a limited exception to the certification 

requirements for State, local, and tribal 

government. This amendment 

maintained the 50 percent match for 

contribution agreements. When NRCS 

published a final rule for TSP 

implementation in November 2004, 

NRCS indicated that it had received 

numerous comments regarding the 50 

percent match requirement for 

contribution agreements. In its response, 

NRCS indicated that they reaffirmed 

that the mutual goals of the agency and 

its partners would best be served if the 

other party, or parties, shared at least 50 

percent of the cost. However, NRCS 

recognized that while its experience at 

that time was that the programs were 

being effectively delivered under those 

contribution rate requirements, it would 

reconsider the matter should an 

interruption in program delivery appear 

to result from the 50 percent 

contribution agreement. Therefore, 

NRCS removed the regulatory 

requirement for the 50 percent match, 

but retained the requirement in its 

contribution agreement policy. 

Because the 50 percent match 

requirement is not regulatory, NRCS is 

not required to amend the TSP 

regulation in order to effectuate a new 

match requirement. However, NRCS has 

reviewed its contribution agreement 

policy in response to the comments 

received and considered whether it 

should retain the existing 50 percent 

match, establish a new match 

requirement, or remove any established 

level of match requirement for 

contribution agreements provided a 

contribution of resources can be 

documented. NRCS will issue new 

policy which includes the flexibility for 

the Chief and others identified in the 

Delegation of Authority to waive the 50 

percent contribution requirement in lieu 

of in-kind services when the entity 

provides a narrative which 


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demonstrates that the 50 percent 

requirement poses a financial burden on 

the entity. 

Applicability 

Seven respondents raised two 

concerns related to the applicability 

section, § 652.2 of the interim final rule. 

Comment: Two respondents requested 

clarification about why installation was 

included among the list of TSP 

activities. 

Response: Section 652.2 of the TSP 

rule includes installation among the list 

of TSP activities since technical services 

include activities that occur during 

implementation of a conservation 

practice. Installation includes laying out 

the practice boundaries and elevations 

and discussing the standards with the 

contractor. Additionally, a design may 

need minor adjustments to address 

specific site conditions that could not be 

known until practice implementation. 

TSPs provide oversight during practice 

implementation to help ensure that plan 

specifications are understood and 

applied by the contractor. Therefore, no 

changes were made in response to this 

comment. 

Comment: Seven respondents stated 

the list of services provided by TSPs 

was too restricted and limited, and 

recommended expanding the list to 

reflect the 2008 Act changes, such as 

forestry planning, education, and 

outreach. 

Response: NRCS concurs with the 

comments related to expanding the list 

to reflect the 2008 Act changes. The 

2008 Act indicates a TSP may provide 

technical services such as conservation 

planning, education and outreach, and 

assistance with design and 

implementation of conservation 

practices. In this final rule, NRCS has 

modified § 652.1(b) to identify that TSPs 

may provide technical services to 

eligible participants in conservation 

planning, education and outreach, and 

assistance with design and 

implementation of conservation 

practices applied on private land, 

Indian land, or where allowed by 

conservation program rules on public 

land. However, NRCS determined that 

forestry planning does not need to be 

added specifically because it is already 

included in the definition of 

conservation planning. 

Certification 

Four concerns were raised on the 

topic of certification. 

Comment: An individual 

recommended that the certification 

review process guard against adding 

arbitrary new requirements. 

Response: Section 2706 of the 2008 

Act required that National Headquarters 

review any unique State-level 

certification criteria. The preamble to 

the interim final rule identified that 

licensing and State law requirements are 

the only State-level certification criteria 

that will be allowed. However, the 

interim final rule did not need to amend 

the TSP regulation itself to effect this 

statutory requirement. During its review 

of certification criteria, NRCS will only 

institute new certification requirements 

if NRCS determines that the 

requirements are essential to ensuring 

quality assistance to program 

participants is maintained. 

Comment: Six respondents believe 

that public agency providers meet most 

certification requirements by virtue of 

their employment with the exception 

that they demonstrate familiarity with 

NRCS regulations and policies. In 

particular, the respondents expressed 

that the expertise and training required 

for natural resource professionals to be 

employed by State agencies should 

generally be regarded as sufficient to 

meet the § 652.21(a)(1) and (2) 

requirements. The respondents 

recommended also deleting § 652.24(b) 

because they believe it requires NRCS to 

use the certification process for 

individuals at § 652.22, thereby mooting 

the opportunity to certify groups of 

individuals under a public agency 

application pursuant to § 652.24. 

Response: NRCS notes that the 

interim final rule did not make any 

changes to Subpart B, and thus the 

respondents’ comments are beyond the 

scope of the interim final rule public 

comment. However, NRCS will address 

the respondents’ comments as follows: 

NRCS establishes the minimal 

certification criteria for a TSP to 

perform a particular service and 

identifies these according to technical 

service categories. Section 652.21 

addresses certification criteria and 

requirements for all TSPs. Section 

652.22 addresses the specific 

requirements for individuals, § 652.23 

addresses specific requirements for 

private-sector entities, and § 652.24 

addresses specific requirements for 

public agencies. 

While NRCS recognizes the 

professionalism possessed by employees 

of other public agencies, NRCS does not 

believe that it is appropriate for the 

agency to certify to the knowledge and 

expertise of someone else’s employees 

simply based upon their employment. 

Therefore, NRCS incorporated under 

§ 624.22, that a public agency must 

identify at least one person in its 

employ who is a certified TSP, or is 

applying for certification as part of the 

public agency’s application for 

certification. 

This criterion also exists to ensure 

that responsibility for any work 

performed by non-certified individuals 

is assumed by a certified individual that 

is authorized to act on the public 

agency’s behalf. NRCS made the 

determination that a public agency 

could not be considered qualified to 

perform technical services for NRCS 

conservation program participants 

unless it employed at least one person 

who was certified and could oversee the 

work of other employees. 

This requirement for public agency 

certification mirrors the requirement 

that NRCS has under its ‘‘job approval 

authority,’’ where an NRCS employee 

can only perform particular technical 

services if the employee has 

demonstrated the qualifications to 

perform the work or the work is 

reviewed and approved by someone 

who is. No changes were made in 

response to these comments. 

Comment: One respondent urged 

NRCS to carry out its review of the 

certification process in a timely, 

transparent, and participatory manner 

and observed that the pool of TSPs 

would increase dramatically were NRCS 

to assume costs of bonding and liability 

for TSPs. 

Response: No change was made in 

response to this comment. Any bonding 

or liability insurance is the 

responsibility of the contractor, and 

USDA cannot assume the liability of 

others. However, NRCS will continue to 

strive to review the certification process 

in a timely and transparent manner as 

recommended by the respondent. 

Comment: One respondent 

recommended that NRCS clarify the 

process that will be used to evaluate 

third party providers and how the 

adjustments will be made. 

Response: All TSPs are required to 

submit documentation of certification 

for services to be provided along with 

actual documents for evaluation to 

ensure technical adequacy. Further 

clarification is available on the TechReg 

Web site at: http://techreg.usda.gov). 

Quality assurance reviews or spot 

checks determine if a TSP meets policy, 

procedures, standards, specifications, 

and other requirements. In the case that 

a deficiency is found, NRCS will 

document the deficiencies and notify 

the TSP and participant of the 

deficiency and specify necessary 

corrective action to remediate the 

deficiency within a reasonable period of 

time. Failure to correct the deficiency in 

the timeframe set by NRCS triggers the 

decertification process. 


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Definitions 

Comment: Five respondents identified 

that there appears to be two definitions 

for technical services which requires a 

technical correction. 

Response: The appearance of two 

definitions for technical services 

occurred due to an error in the interim 

final rule amendatory language where 

the new and revised definitions did not 

appear in correct alphabetical order. 

NRCS will remove the definition 

promulgated during the 2004 TSP final 

rule, and is revising the January 16, 

2009, interim final rule definition as a 

conforming amendment in response to 

this comment. In particular, technical 

services in this final rule will read as 

follows: Technical service means the 

technical assistance provided by TSPs, 

including conservation planning; 

education and outreach; and the design, 

installation, and check-out of approved 

conservation practices.’’ 

Comment: One respondent 

recommended that NRCS clarify the use 

of a TSP for where a producer receives 

financial assistance, versus where a 

producer does not receive financial 

assistance. 

Response: Program participants 

receive Farm Bill financial and 

technical assistance to implement their 

conservation practices. Program 

participants that would not receive 

Farm Bill financial assistance may also 

receive technical assistance from NRCS 

or a TSP. For example, if the program 

participant receives financial assistance 

from the State government or any other 

entity, they may also request technical 

assistance from NRCS to include TSP 

services. Because the rule accurately 

reflects when technical services may be 

acquired, no changes were made in 

response to this comment. 

Comment: Two respondents 

recommended that the definition of 

technical service include work on 

maintenance of NRCS contracts. 

Response: The scope does not include 

maintenance, since maintenance is a 

responsibility of the program participant 

under the terms of an operations and 

maintenance agreement, and such 

activities normally do not involve the 

need for technical assistance. TSPs 

provide technical assistance for design, 

layout, installation, and check-out of 

approved conservation practices. No 

changes were made in response to this 

comment. 

Comment: One respondent 

recommended adding a definition for 

the term conservation plan tied to the 

planning requirements of each program 

under statute. 

Response: The TSP regulation did not 

define the term conservation plan, and 

NRCS agrees that a definition for 

conservation plan will clarify aspects 

regarding the delivery of technical 

services. However, NRCS does not 

believe that the definition requires being 

tied to the planning requirements for 

each program, as recommended by the 

respondent. NRCS conducts its 

conservation planning activities 

pursuant to the National Planning 

Procedures Handbook (NPPH). The term 

conservation plan is defined by the 

NPPH, and NRCS believes that it should 

use a definition consistent with its longstanding procedures. Therefore, a new 

definition to § 652.3, ‘‘Definitions’’ is 

added to read as follows: ‘‘Conservation 

plan means a record of the client’s 

decisions and supporting information, 

for treatment of a land unit or water as 

a result of the planning process, that 

meets the Field Office Technical Guide 

quality criteria for each natural resource 

(soil, water, air, plants, and animals) 

and takes into account economic and 

social considerations. The plan 

describes the schedule of operations and 

activities needed to solve identified 

natural resource problems, and takes 

advantage of opportunities at a 

conservation management system level. 

The needs of the client, resources, and 

Federal, State, and local requirements 

will be met.’’ 

General Program Rules 

NRCS received several comments on 

matters related to the general program. 

Topics included training, consultation 

with Indian tribes, and various issues 

related to the utilization of TSPs. 

Comment: NRCS received comments 

from three respondents regarding the 

training of TSPs and recommended that 

a successful training program requires 

the involvement of both NRCS 

personnel and funding. 

Response: The interim final rule 

clarified NRCS’ role regarding the 

training of TSPs. In particular, the 

interim final rule set forth the 

conditions and procedures by which 

NRCS may provide training to third 

party providers to assist them with 

meeting certification requirements. 

Section 652.3(c)(4) of the TSP 

regulations authorizes training for TSPs 

to ensure that persons meet the 

certification criteria for certain technical 

expertise. Consistent with its legal 

authorities, NRCS determined it is 

appropriate to limit its provision of 

training to matters particular to its 

practice standards, policies, and 

procedures. 

Comment: One respondent requested 

that the rule clarify that consultation 

with tribes is required when NRCS 

funds off-reservation activities that 

directly impact a treaty-reserved 

resource of the tribe. 

Response: NRCS meets its 

consultation responsibilities with 

Indian tribes through adherence to the 

principles identified in Executive Order 

13175. Executive Order 13175 specifies 

that the United States works with Indian 

tribes on a government-to-government 

basis to address issues concerning 

Indian tribal self-government, tribal 

trust resources, and Indian tribal treaty 

and other rights. Each agency must 

ensure meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications. ‘‘Policies that have tribal 

implications’’ refers to actions that have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

No changes were made in response to 

this comment. 

Comment: Two respondents 

recommended that NRCS focus TSP 

contracts and agreements on instances 

where: (1) TSPs will provide services at 

substantially less cost than NRCS; (2) 

NRCS does not have the critical skills 

needed; and (3) TSPs can help address 

critical resource needs. 

Response: The State Conservationist 

in each State has the ability to increase 

the availability, range and scope of 

technical experts, and services 

depending on critical resource needs. 

TSPs are being utilized to further 

achieve the objectives of the agency in 

areas that would otherwise be limited 

by personnel shortages. 

NRCS obtains technical or support 

services directly through procurement 

contracts, contribution agreements, 

cooperative agreements, or other 

instruments appropriate for obtaining 

technical assistance services. TSPs 

perform technical services in most 

aspects of conservation including 

conservation planning, design, layout, 

installation, and checkout of 

conservation practices. All work 

performed by TSPs must be done in 

accordance with agency practice 

standards and guidelines. No changes 

were made in response to these 

comments. 

Comment: Two respondents 

recommend that NRCS incorporate 

conflict of interest provisions that 

prohibit TSPs from having a financial 

interest in products or services 

recommended by plans. 

Response: No changes were made in 

response to this comment. When NRCS 

published the TSP final rule in 

November 2004, the agency indicated 


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that it had received nearly 157 

comments on whether NRCS should 

incorporate a conflict of interest 

provision into the TSP rule. The NRCS 

response at that time was as follows: 

‘‘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.’’ 

NRCS, in its own contracts or 

agreements with providers, incorporates 

provisions to address potential conflicts 

of interest that a provider may have. 

These clauses include particular 

restraints upon other arrangements the 

provider can enter while providing 

services under contract or agreement for 

NRCS. NRCS recommends that program 

participants similarly evaluate for 

themselves whether the TSPs they hire 

are providing fair and impartial 

recommendations, and make their own 

decisions regarding whether they 

should do business with a TSP who may 

have alternative motivations for 

providing advice. 

Comment: One respondent 

recommended NRCS not provide a 

lower cost-share for participants using 

NRCS services than participants who 

obtain services from a TSP. 

Response: The agency’s policy and 

guidelines pertaining to the cost-share 

rates are the same regardless of whether 

a TSP or an NRCS employee developed 

the conservation plan. 

Comment: One respondent 

recommended NRCS undertake 

initiatives to ensure it can meet new 

requirements to serve organic farmers 

and ranchers. 

Response: NRCS embraces the 

opportunity to increase the nature and 

quality of the technical services it can 

provide to farmers and ranchers who 

utilize organic systems of production. 

For example, the TSP team is working 

with National Headquarters to establish 

a Memoranda of Understanding for 

outreach, training, and certification 

programs. Additionally, NRCS has 

allocated Environmental Quality 

Incentives Program (EQIP) funds for an 

Organic Initiative. The Conservation 

Stewardship Program (CSP) also 

addresses the needs of organic farmers 

and ranchers by identifying 

opportunities for enhancements related 

to organic production. 

In addition to the EQIP Organic 

Initiative and CSP enhancements, NRCS 

is evaluating its conservation practices 

to increase their applicability to organic 

and specialty crop systems. On June 12, 

2009, NRCS published in the Federal 

Register a notice regarding the results of 

NRCS compliance with section 1242(h) 

of the Food Security Act of 1985, and 

to solicit public comment about how to 

improve agency conservation practice 

standards. The initial public comment 

period closed on August 11, 2009, but 

NRCS re-opened and extended the 

public comment period to September 

14, 2009, to ensure the agency received 

comments from a broad segment of the 

agriculture sector. 

Comment: One respondent 

recommended against providing funds 

for ‘‘cookie-cutter’’ plans or other 

services. 

Response: TSPs are required to offer 

producers technical services that meet 

NRCS standards and specifications for 

the specific natural resource needs on a 

particular property. Payment rates 

reflect the complexity of the technical 

services to be provided. 

Outreach 

Comment: Two respondents suggested 

NRCS increase its outreach to smaller 

farm operators and non-industrial 

private landowners. 

Response: Section 1244(a)(1) 

authorizes NRCS to provide incentives 

to beginning farmers, socially 

disadvantaged farmers, limited resource 

farmers, and Indian tribes. Under this 

authority, NRCS has established ranking 

pools through its conservation programs 

to encourage wider participation by 

historically underserved producers. No 

changes were made in response to this 

comment. 

Payments 

NRCS received 10 comments from 8 

respondents regarding TSP payments. 

Comment: One respondent indicated 

that regional consistency does not 

ensure or promote fair or reasonable 

payment rates, and NRCS should allow 

State Conservationists the flexibility to 

set payment rates. 

Response: NRCS did not make any 

changes in response to this comment 

because there are already policies in 

place which allow for flexibility within 

reasonable limits. The State 

Conservationist retains the authority to 

establish individual rates for the local 

area, and National Headquarters reviews 

rates for consistency. NRCS is cognizant 

that where two States provide services 

to a common watershed or region, there 

should be consistency for payment rates 

for the same activity. National 

Headquarters can identify these 

differences and make recommendations 

to States, but will not dictate that the 

rates be the same. 

Comment: One respondent requested 

clarification regarding the type of 

circumstances that constituted unusual 

conditions or unforeseen circumstances 

that would justify a different payment 

rate. Three respondents requested 

clarification whether sensitive, 

endangered, or invasive species qualify 

as unusual conditions or unforeseen 

circumstances. 

Response: Sensitive, endangered, or 

invasive species may be treated as 

unusual conditions consistent with 

other resource concerns. On a case-bycase basis, in response to unusual 

conditions or unforeseen circumstances 

such as set forth in § 652.5(m)(2)(v), 

NRCS may adjust payment rates to 

address the additional costs associated 

with the unusual conditions or 

unforeseen circumstances. No changes 

were made in response to these 

comments. 

Comment: One respondent identified 

that it appears reference to ‘‘not to 

exceed rates’’ remains in the regulation 

and should be deleted. 

Response: NRCS intended to delete 

§ 652.5(k) in the interim final rule. 

Consequently, the references to ‘‘not to 

exceed rates’’ have been removed from 

the final rule. The provisions of 

§ 652.5(k) regarding establishing 

payment rates were replaced by 

§ 652.5(m) of the interim final rule. In 

this final rule, the provisions of 

§ 652.5(m) now appears as § 652.5(l). 

Comment: Two respondents 

recommend that NRCS consider the 

equity of providing different levels of 

assistance to competing producers and 

should use TSPs to promote wholeoperation, multi-resource conservation 

planning, and planning that addresses 

highest resource priorities in an area. 

Response: NRCS implements policy 

as recommended by the respondents. 

NRCS promotes whole operation, multiresource conservation planning and 

planning that addresses the highest 

resources. Different levels of assistance 

only occur when there are differences in 

local cost share rates, a landowner 

qualifies as a historically underserved 

producer, or the project is only able to 

address one resource concern. No 

changes were made in response to this 

comment. 

Comment: Three respondents 

proposed that States establish TSP 

payment rates which capture local 

market conditions and maintain 

flexibility. These respondents opposed 

setting payment rates solely for hard 

deliverables, expressing that this would 

impede conservation program delivery. 

The respondents offered that payments 


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based on the level of service will 

facilitate the acceleration of technical 

assistance. 

Response: NRCS bases TSP payments 

on a per contract basis because each 

situation must be evaluated on the 

conservation needs for that situation. 

However, NRCS does not endorse 

establishing payment rates based solely 

on a set of deliverables for each 

situation. NRCS believes that the 

establishment of a per/unit rate allows 

for consistency in payment rates, while 

allowing contracts to vary based on 

conservation needs. No changes were 

made in response to these comments. 

Comment: Several respondents 

commented upon the use of market data 

in the establishment of payment rates 

and the review of such rates by National 

Headquarters. In particular, one 

respondent recommended that NRCS 

evaluate the basis for differentials 

reflected in market data before 

importing data as the basis for TSP 

rates. Two respondents support use of 

common guidelines to ensure 

consistency, but want that process to 

allow variation among States. One 

respondent recommended NRCS 

undertake a comparison of overall TSP 

costs with internal costs for NRCS 

personnel. Two respondents requested 

NRCS review and approve State 

payment rates. Two individuals 

commented on the use of procurement 

data at § 652.5(m)(2)(ii), and cautioned 

that the use of procurement data should 

be monitored carefully. In particular, 

the use of procurement data should 

include all data related to a Request for 

Proposals or General Services 

Administrate procurement schedule. 

The respondents indicated that the use 

procurement data from individual 

contracts and cooperative agreements 

with other agencies or nongovernmental organizations are not 

representative of actual costs since these 

entities are often subsidized from other 

sources. 

Response: Section 652.5(m)(2)(ii) of 

the TSP regulation indicates that the 

State Conservationist will establish TSP 

payment rates in each State for the 

various categories of technical services. 

State Conservationists determine the 

rates according to local NRCS cost data, 

procurement data, and market data, and 

have the authority to use any 

procurement (private or government) 

that is available within the State. NRCS 

does not wish to limit consideration to 

only certain forms of procurement. 

While NRCS recognizes the potential 

disparity in cost information gleaned 

from various sources, procurement data 

is just one of three sources of data that 

the State is authorized to use in the 

development of the payment rate for 

TSPs. States have the necessary 

flexibility to use a combination of all 

three or a single source based on best 

obtainable information. 

National Headquarters will review 

and approve State payment rates to 

ensure consistency where similar 

resource conditions and agricultural 

operations exist. Payment rates may 

vary to some degree between or within 

States due to differences in State laws, 

the cost of doing business, competition, 

and other variables, such as variations 

in topography, soil type, and the 

presence of cultural resources. No 

changes were made in response to these 

comments. 

Procurement 

Comment: One respondent 

recommended NRCS utilize all available 

data to assess the unmet need for 

technical services and training. Two 

respondents recommended that the 

Chief provide guidance for acceptable 

use of TSP funds, and that such funds 

should not be used to compensate for 

State budget shortfalls. 

Response: The National Headquarters 

TSP team uses the Performance Results 

System (PRS) data and financial 

management reporting data to determine 

the unmet needs for technical services. 

NRCS has incorporated flexibility into 

the TSP provisions to allow State 

Conservationists the discretion to 

determine how to utilize TSPs to meet 

the technical service needs of the State. 

The funding for TSP services is not used 

for State USDA employee 

compensation. No changes were made 

in response to these comments. 

Socially Disadvantaged Producers 

Comment: One respondent 

recommended that NRCS assure that 

there are adequate numbers of staff to 

service needs of socially disadvantaged 

producers and beginning farmers and 

ranchers, and that the performance 

review system incorporates such. The 

respondent contends that because EQIP 

and CSP have targeted percents of 

financial assistance funding, that NRCS 

identify targeted percentage of technical 

assistance funding accordingly. 

Response: Since financial assistance 

and technical assistance funds are 

allocated proportionally, the amount of 

funds available for technical services 

should correspond with the financial 

assistance levels allocated to socially 

disadvantaged producers and beginning 

farmer and ranchers. Therefore, NRCS 

has not established any targets for 

utilization of the technical assistance 

funds or TSP participation. No changes 

were made in response to this comment. 

Summary of Changes by Section 

NRCS confirms the changes made to 

the TSP regulations by the January 16, 

2009, interim final rule except for minor 

adjustments to three sections as 

described below and explained in the 

preamble. Because the amendatory 

language used in the interim final rule 

has created confusion, NRCS is 

reprinting subpart A with the identified 

changes and corrections incorporated. 

Section 652.1 

In this final rule, NRCS modifies 

paragraph (b) to remove the limitation to 

‘‘where there is a direct private land 

benefit’’ in response to recent 

amendments made to EQIP that 

expanded the availability of program 

funding to public lands that are part of 

a producer’s agricultural operation. 

NRCS also clarifies the types of 

activities that TSPs may provide to 

participants to include education and 

outreach, and assistance with design 

implementation. 

Section 652.2 

NRCS revises the definition of 

‘‘technical services,’’ removes the 

redundant definition for ‘‘technical 

services,’’ and adds definitions for the 

terms ‘‘conservation plan’’ and 

‘‘conservation activity plan.’’ 

Section 652.5 

NRCS removes the provisions that 

referenced ‘‘not-to-exceed’’ rates that 

were contained in § 652.5(k) of the 

interim final rule. 

List of Subjects in 7 CFR Part 652 

Natural resources, soil conservation, 

technical assistance, technical service, 

water resources. 

■ For the reasons stated in this 

preamble, NRCS confirms as final, the 

interim rule published on January 16, 

2009 (74 FR 2800) and further amends 

part 652 of Title 7 of the CFR as follows: 

PART 652—TECHNICAL SERVICE 

PROVIDER ASSISTANCE 

■ 1. The authority citation for part 652 

continues to read as follows: 

Authority: 16 U.S.C. 3842. 

■ 2. Part 652 is amended by revising 

Subpart A to read as follows: 

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. 


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6846 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

652.7 Quality assurance. 

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 (TSPs). The Food 

Security Act of 1985, requires the 

Secretary to deliver technical assistance 

to eligible participants for 

implementation of its Title XII Programs 

and the conservation activities in the 

Agricultural Management Assistance 

Program, 7 U.S.C. 1524, directly, 

through an agreement with a third party 

provider, or at the option of the 

producer through payment to the 

producer for an approved third party 

provider. This regulation defines how a 

participant acquires technical service 

from a third party TSP, sets forth a 

certification and decertification process, 

and establishes a method to make 

payments for technical services. 

(b) TSPs may provide technical 

services to eligible participants in 

conservation planning, education and 

outreach, and assistance with design 

and implementation of conservation 

practices applied on private land, 

Indian land, or where allowed by 

conservation program rules on public 

land. 

(c) The Chief may implement this part 

in any of the 50 States, District of 

Columbia, Commonwealth of Puerto 

Rico, Guam, 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 the Natural 

Resources Conservation Service (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. 

(2) An entity or public agency 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 activity plan means the 

conservation practices associated with 

plan development as authorized under 

the Food, Conservation, and Energy Act 

of 2008 (2008 Act). 

Conservation plan means a record of 

the client’s decisions and supporting 

information for treatment of a land unit 

or water as a result of the planning 

process that meets the Field Office 

Technical Guide quality criteria for each 

natural resource (soil, water, air, plants, 

and animals), and takes into account 

economic and social considerations. 

The plan describes the schedule of 

operations and activities needed to 

solve identified natural resource 

problems and takes advantage of 

opportunities at a conservation 

management system level. The needs of 

the client, the resources, and Federal, 

State, and local requirements will be 

met. 

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 defined in the Federal Grants 

and Cooperative Agreement Act, 31 

U.S.C. 6301 et seq. 

Department means the NRCS, the 

Farm Service Agency, or any other 

agency or instrumentality of the 

Department of Agriculture (USDA) that 

is assigned responsibility for all or a 

part of a conservation program subject 

to this part. 

Eligible Participant means a producer, 

landowner, or entity that is participating 

in, or seeking to participate in, a 

conservation program covered by this 

rule in which the producer, landowner, 

or entity is otherwise eligible to 

participate. 

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. 

Indian land means all lands held in 

trust by the United States for individual 

Indians or tribes, or all lands, titles to 

which are held by individual Indians or 

tribes, subject to Federal restrictions 

against alienation or encumbrance, or 

all lands which are subject to the rights 

of use, occupancy, and benefit of certain 

tribes. The term Indian land also 

includes land for which the title is held 

in fee status by Indian tribes and the 

United States Government-owned land 

under the Bureau of Indian Affairs 

jurisdiction. 

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 program authorized under Title XII 

of the Food Security Act of 1985, or the 

Agricultural Management Assistance 

Program, authorized under 7 U.S.C. 

1524. 

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 

TSPs for specific technical services. 

Secretary means the Secretary of the 

Department of Agriculture. 

State Conservationist means the 

NRCS employee authorized to direct 

and supervise NRCS activities in a State, 

Caribbean Area, or Pacific Basin Area. 

Technical Service Contract means a 

document that specifies the rights and 

obligations of an eligible participant to 

obtain technical services from a TSP 

where the eligible participant will not 

receive financial assistance for the 

implementation of the practice paid for 

in the technical service contract through 

participation in a Title XII conservation 

program or the Agricultural 

Management Assistance Program, 7 

U.S.C. 1524. 

Technical service means the technical 

assistance provided by TSPs, including 

conservation planning; education and 

outreach; and the design, 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 


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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 

TSP in accordance with the 

requirements of this part. 

(b) The Chief of 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 TSP process; 

(2) Consult with the Farm Service 

Agency and other appropriate agencies 

and entities concerning the availability 

and utilization of TSPs 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 TSPs; 

(4) Provide training to ensure that 

persons meet the certification criteria 

for certain technical expertise when 

there is a lack of training resources or 

market outside the agency for such 

technical expertise. However, any 

training provided by the Department 

will be limited to training about 

Department regulations, policies, 

procedures, processes, and business and 

technical tools unique to NRCS; and 

(5) 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 TSP 

unless the TSP 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 

TSP in this manner, the TSP is 

authorized to provide technical services 

and receive payment even if such TSP 

is not certified in accordance with 

subpart B, nor identified on the 

approved list. 

(f) When a participant acquires 

technical services from a TSP, the 

Department is not a party to the 

agreement between the participant and 

the TSP. To ensure that quality 

implementation of the goals and 

objectives of the conservation programs 

are met, the TSP must be certified by 

NRCS in accordance with subpart B of 

this part and identified on the approved 

list. Upon request of NRCS, TSPs are 

required to submit copies of all 

transcripts, licensing, and certification 

documentation. 

§ 652.4 Technical service standards. 

(a) All technical services provided by 

TSPs 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 

TSP initiating technical services for 

those technologies and practices. 

(c) A TSP must assume responsibility 

in writing for the particular technical 

services provided. Technical services 

provided by the TSP 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) TSPs 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 TSP 

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 TSP. 

(g) The TSP will 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, TSPs may utilize the 

services of subcontractors to provide 

specific technical services or expertise 

needed by the TSP, 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. 

§ 652.5 Participant acquisition of technical 

services. 

(a) Participants may obtain technical 

assistance directly from the Department 

or, when available, from a TSP. 

(b) To acquire technical assistance 

directly from the Department, 

participants should contact their local 

USDA Service Center. 

(c) To acquire technical services from 

a TSP, 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 TSP from the 

approved list of TSPs. 

(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 or 

activity plans suitable for subsequent 

incorporation into a program contract. 

(f) The Department may make 

payment to eligible participants who 


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have a technical service contract and 

utilize it for technical assistance from a 

TSP. 

(g) The Department will identify in 

the particular program contract or 

written agreement the payment 

provisions for TSPs hired directly by the 

participant. 

(h) 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 TSP hired by the 

participant, or upon receipt of an 

assignment of payment from the 

participant, make payment directly to 

the TSP. 

(i) 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 TSPs. 

(j) 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. 

(k) The Department will not make 

payment for activities or services that 

are customarily provided at no cost by 

a TSP to a participant as determined by 

the State Conservationist. 

(l) Payment rates for technical 

services acquired by participants. 

(1) NRCS will calculate TSP payment 

rates for technical services using 

national, regional, and locally 

determined price data. 

(2) Establishing TSP payment rates. 

(i) NRCS will establish guidelines to 

analyze the local pricing information 

using a standardized method. 

(ii) The State Conservationist will 

establish TSP payment rates in each 

State for the various categories of 

technical services. The State 

Conservationist will determine the rates 

according to local NRCS cost data, 

procurement data, and market data. 

(iii) National Headquarters will 

review and approve State payment rates 

to ensure consistency where similar 

resource conditions and agricultural 

operations exist. Payment rates may 

vary to some degree between or within 

States due to differences in State laws, 

the cost of doing business, competition, 

and other variables. 

(iv) National Headquarters and State 

levels will review payment rates 

annually or more frequently, as needed, 

and adjust the rates based upon data 

from existing procurement contracts, 

Federal cost rates, and other appropriate 

sources. 

(v) NRCS may adjust payment rates, 

as needed, on a case-by-case basis in 

response to unusual conditions or 

unforeseen circumstances in delivering 

technical services such as highly 

complex technical situations, 

emergency conditions, serious threats to 

human health or the environment, or 

major resource limitations. In these 

cases, NRCS will set a case-specific TSP 

payment rate based on the Department’s 

determination of the scope, magnitude, 

and timeliness of the technical services 

needed. 

§ 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 may enter into a 

procurement contract, contribution 

agreement, cooperative agreement, or 

other appropriate instrument with TSPs 

to provide related technical assistance 

services that accelerate conservation 

program delivery. Related technical 

assistance services may include 

activities or services that facilitate the 

development, processing, or 

implementation of a program contract, 

such as recording conservation planning 

decisions and specifications. 

(c) NRCS may enter into agreements 

with other agencies or with a nonFederal entity to provide technical 

services to eligible participants. 

(d) 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 TSP through a 

procurement contract, contribution 

agreement, cooperative agreement, or 

other similar instrument, the TSP is 

authorized to provide technical services 

and receive payment even if such TSP 

is not certified in accordance with 

subpart B of this part nor identified on 

the approved list. 

(e) 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. 

Any contract, contribution agreement, 

cooperative agreement, or other 

appropriate instrument entered into 

under this section will be for a 

minimum of one year, will not exceed 

3 years in duration, and may be 

renewed upon mutual agreement of the 

parties. 

(f) A TSP 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. 

(g) 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 TSPs. As a 

requirement of certification, TSPs must 

develop and maintain documentation in 

accordance with Departmental manuals, 

handbooks, and technical guidance for 

the technical services provided, and 

provide 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 TSP, 

and other relevant information in 

determining how to improve the quality 

of technical service, as well as 

determining whether to decertify a TSP 

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 

TSP detailing the deficiency and 

requesting remedial action by the TSP. 

Failure by the TSP 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. TSPs are solely responsible for 

providing technical services that meet 

all NRCS standards and specifications. 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 6849 

Signed this 4th day of February, 2010, in 

Washington, DC. 

Dave White, 

Chief, Natural Resources Conservation 

Service. 

[FR Doc. 2010–2814 Filed 2–11–10; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2009–0613; Directorate 

Identifier 2009–NM–013–AD; Amendment 

39–16195; AD 2010–04–02] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A310–221, –222, –322, –324, and –325 

Airplanes, and Model A300 B4–620, 

B4–622, B4–622R, and F4–622R 

Airplanes, Equipped With Pratt & 

Whitney PW4000 or JT9D–7R4 Series 

Engines 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for the 

products listed above. This AD results 

from mandatory continuing 

airworthiness information (MCAI) 

originated by an aviation authority of 

another country to identify and correct 

an unsafe condition on an aviation 

product. The MCAI describes the unsafe 

condition as: 

During the year 2000, life extension 

exercise programs were launched for Airbus 

A310 and A300–600 aircraft. Certification of 

Extended Service Goal (ESG) is based on 

analysis, except for fan cowl and thrust 

reverser (T/R) latches, which are always 

certified by tests. 

* * * testing of the T/R door centre latch 

has shown that this does not meet the 

requirements for ESG. 

* * * * * 

The unsafe condition is possible failure 

of the T/R latch and detachment of the 

T/R from the airplane, which could 

result in structural damage and 

consequent reduced controllability of 

the airplane. We are issuing this AD to 

require actions to correct the unsafe 

condition on these products. 

DATES: This AD becomes effective 

March 19, 2010. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in the AD 

as of March 19, 2010. 

ADDRESSES: You may examine the AD 

docket on the Internet at http:// 

www.regulations.gov or in person at the 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC. 

FOR FURTHER INFORMATION CONTACT: Dan 

Rodina, Aerospace Engineer, 

International Branch, ANM–116, 

Transport Airplane Directorate, FAA, 

1601 Lind Avenue, SW., Renton, 

Washington 98057–3356; telephone 

(425) 227–2125; fax (425) 227–1149. 

SUPPLEMENTARY INFORMATION: 

Discussion 

We issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 to include an AD that would 

apply to the specified products. That 

NPRM was published in the Federal 

Register on July 16, 2009 (74 FR 34516). 

That NPRM proposed to correct an 

unsafe condition for the specified 

products. The MCAI states: 

During the year 2000, life extension 

exercise programs were launched for Airbus 

A310 and A300–600 aircraft. Certification of 

Extended Service Goal (ESG) is based on 

analysis, except for fan cowl and thrust 

reverser (T/R) latches, which are always 

certified by tests. 

Currently, the Airworthiness Limitation 

Item (ALI) task 54–50–28 for engine pylon T/ 

R hinges requires inspection every 1,200 

Flight Cycles (FC). An analysis performed by 

Airbus shows that forward and aft T/R door 

latches have been demonstrated successful 

for ESG, with inspection task every 1,200 FC. 

However, testing of the T/R door centre latch 

has shown that this does not meet the 

requirements for ESG. 

For the reason described above, this EASA 

AD requires the replacement of the T/R 

centre latches with serialized latches on LH 

[left hand] and RH [right hand] engines and 

repetitive [detailed] inspections [for cracking] 

of the serialized latches. In addition, this AD 

introduces a life limit of 18,000 FC for the 

serialized centre latches. 

The unsafe condition is possible failure 

of the T/R latch and detachment of the 

T/R from the airplane, which could 

result in structural damage and 

consequent reduced controllability of 

the airplane. The corrective action 

includes replacing the T/R latch if any 

surface crack is found during any 

inspection. You may obtain further 

information by examining the MCAI in 

the AD docket. 

Comments 

We gave the public the opportunity to 

participate in developing this AD. We 

considered the comments received. 

Support for the NPRM 

FedEx Express has no objections or 

comments on the content or technical 

details of the NPRM. 

Request To Reduce Applicability 

Airbus asks that Model A300 F4–605R 

airplanes be removed from the 

applicability specified in the NPRM. 

Airbus states that these airplanes are 

equipped with General Electric CF6– 

80C2A5 or CF6–80C2A5F engines. 

We agree with Airbus for the reasons 

provided. The actions required by this 

AD are not applicable to Model A300 

F4–605R airplanes and the MCAI does 

not refer to this model; therefore, we 

have removed that model from the 

applicability of this AD. 

Request To Add a Note 

Airbus also recommends that we 

include a note after paragraph (f)(2) of 

the NPRM that specifies that 

accomplishing ALI Task 54–50–28, 

which pertains to a detailed inspection 

of the engine cowl hinge fittings LH/RH, 

can be done when complying with the 

inspections required by paragraph (f)(2) 

of the AD. 

We agree with the recommendation 

from Airbus. While not mandatory, 

performing the specified ALI task at the 

same time as the inspection required by 

paragraph (f)(2) of this AD would be of 

benefit to operators and would help to 

maintain an acceptable level of safety on 

the airplanes. We have added a new 

Note 1 to this AD (and renumbered 

subsequent notes) to include this 

recommendation. 

Explanation of Clarification Made to 

the Service Bulletin References 

In paragraph (f)(2) of the NPRM, we 

refer to Airbus Mandatory Service 

Bulletins A300–78–6029 and A310–78– 

2030, both including Appendix 1, both 

dated October 3, 2008, as the 

appropriate sources of service 

information for doing the inspection. 

However, the Accomplishment 

Instructions of those service bulletins do 

not contain procedures for doing the 

inspection, and the Pratt & Whitney 

service bulletins that contain the 

inspection procedures are referred to 

only in the Reason section of the Airbus 

service bulletins. Therefore, for 

clarification, we have referenced Pratt & 

Whitney Service Bulletins PW4NAC 78– 

113 and PW7R4 78–182, both dated 

August 15, 2005; in paragraph (f)(2) of 

this AD as the appropriate sources of 

service information for doing the 

inspection. 

Explanation of Clarification Made to 

the NPRM 

We have clarified the inspection 

requirement contained in the NPRM. 

Whereas the NPRM specifies an 

‘‘inspection,’’ we have revised this AD to 


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