[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.
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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: [email protected].
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:
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
[[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