[Federal Register Volume 75, Number 29 (Friday, February 12, 2010)]
[Rules and Regulations]
[Pages 6839-6849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2814]



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

[[Page 6839]]



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: <a href="/cdn-cgi/l/email-protection#f5a1a6a5c7c5c5cdb5829196db80869194db929a83"><span class="__cf_email__" data-cfemail="6135323153515159211605024f141205004f060e17">[email protected]</span></a>.

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,

[[Page 6840]]

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 6841]]

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 non-
governmental 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

[[Page 6842]]

demonstrates that the 50 percent requirement poses a financial burden 
on the entity.

Applicability

    Seven respondents raised two concerns related to the applicability 
section, Sec.  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 Sec.  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 Sec.  652.21(a)(1) and (2) requirements. The respondents 
recommended also deleting Sec.  652.24(b) because they believe it 
requires NRCS to use the certification process for individuals at Sec.  
652.22, thereby mooting the opportunity to certify groups of 
individuals under a public agency application pursuant to Sec.  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, Sec.  652.23 addresses specific requirements for private-
sector entities, and Sec.  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 Sec.  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.

[[Page 6843]]

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 long-standing procedures. 
Therefore, a new definition to Sec.  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

[[Page 6844]]

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-by-case basis, in response to unusual conditions or unforeseen 
circumstances such as set forth in Sec.  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 Sec.  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 Sec.  652.5(k) 
regarding establishing payment rates were replaced by Sec.  652.5(m) of 
the interim final rule. In this final rule, the provisions of Sec.  
652.5(m) now appears as Sec.  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 whole-operation, 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, multi-resource 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

[[Page 6845]]

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 Sec.  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 non-
governmental 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 Sec.  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.

0
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

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

    Authority:  16 U.S.C. 3842.


0
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.

[[Page 6846]]

652.7 Quality assurance.

Subpart A--General Provisions


Sec.  652.1  Applicability.

    (a) The regulations in this part set forth the policies, 
procedures, and requirements related to delivery of technical 
assistance by individuals and entities other than the Department, 
hereinafter referred to as technical service providers (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.


Sec.  652.2  Definitions.

    The following definitions apply to this part and all documents 
issued in accordance with this part, unless specified otherwise:
    Approved list means the list of individuals, private sector 
entities, or public agencies certified by 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

[[Page 6847]]

that has been authorized by NRCS to receive conservation planning 
assistance without having a program contract.


Sec.  652.3  Administration.

    (a) As provided in this part, the Department will provide technical 
assistance to participants directly, or at the option of the 
participant, through a 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.


Sec.  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.


Sec.  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

[[Page 6848]]

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.


Sec.  652.6  Department delivery of technical services.

    (a) The Department may enter into a procurement contract, 
contribution agreement, cooperative agreement, or other appropriate 
instrument to assist the Department in providing technical assistance 
when implementing the conservation programs covered by this part.
    (b) The Department 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 
non-Federal 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.


Sec.  652.7  Quality assurance.

    (a) NRCS will review, in consultation with the Farm Service Agency, 
as appropriate, the quality of the technical services provided by 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.


[[Page 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


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