[Federal Register: November 21, 2002 (Volume 67, Number 225)]
[Rules and Regulations]
[Page 70119-70133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no02-2]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 652
Technical Service Provider Assistance
AGENCY: Natural Resources Conservation Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule sets forth the Department's process
for administering the provision of conservation technical assistance by
technical service providers as authorized under section 1242 of the
Food Security Act, as amended by the Farm Security and Rural Investment
Act of 2002 (2002 Farm Bill). The Secretary of Agriculture has
delegated responsibility for administering technical services provided
by technical service providers to the Natural Resources Conservation
Service (NRCS). NRCS seeks comments from the public on this interim
final rule.
DATES: Effective date: March 1, 2003. Comments must be received by
February 19, 2003.
ADDRESSES: Send comments by mail to Melissa Hammond, Technical Service
Provider Coordinator, Natural Resources Conservation Service (NRCS),
P.O. Box 2890, Washington, DC 20013, or by e-mail to:
melissa.hammond@usda.gov; attn: Technical Service Provider Assistance.
This interim final rule may also be accessed via the Internet through
the NRCS homepage at http://www.nrcs.usda.gov and selecting Farm Bill
2002.
FOR FURTHER INFORMATION CONTACT: Melissa Hammond, Technical Service
Provider Coordinator, Strategic Natural Resource Issues Staff, NRCS,
P.O. Box 2890, Washington, DC 20013-2890, telephone: (202) 720-6731;
fax: (202) 720-3052; submit e-mail to:
[[Page 70120]]
gary.gross@usda.gov, Attention: Technical Service Provider Assistance.
SUPPLEMENTARY INFORMATION:
Background
In 1994, the Department of Agriculture reorganized and transferred
increased responsibilities for administration of conservation programs
to the Natural Resources Conservation Service (NRCS) to provide
technical and financial assistance to producers to improve the natural
resource conditions on their land. The Federal Agricultural Improvement
and Reform Act of 1996 (the 1996 Farm Bill), Public Law 104-127,
created several new conservation programs for which the Secretary of
Agriculture delegated administrative responsibility to NRCS.
Through the implementation of its conservation programs, NRCS
utilizes its technical expertise to provide producers with information
to help them make land management decisions. When a producer applies to
participate in a conservation program, NRCS helps the producer evaluate
the resource conditions on their land to determine the most appropriate
way to meet the producer's conservation objectives. Through its
conservation planning process, NRCS helps the producer develop a
conservation plan and, depending upon the availability of funds, the
Department provides financial assistance to the producer to implement
identified conservation practices or systems.
The 2002 Farm Bill
The Farm Security and Rural Investment Act of 2002 (the ``2002 Farm
Bill''), Public Law 107-171, expanded the availability of financial and
technical assistance funds for the implementation of conservation
programs. At the time of enactment, the Congressional Budget Office
estimated that the 2002 Farm Bill represented a $17 billion increase in
the level of funding for conservation programs.
The current staffing levels of NRCS are insufficient to adequately
meet the increased need for technical assistance under the conservation
programs authorized or re-authorized by the 2002 Farm Bill. Section
2701 of the 2002 Farm Bill amended section 1242 of the Food Security
Act of 1985 (``Food Security Act''), as amended, to require the
Secretary of Agriculture to provide technical assistance under the Food
Security Act conservation programs to a producer eligible for that
assistance ``directly * * * or at the option of the producer, through a
payment * * * to the producer for an approved third party, if
available.'' The Secretary of Agriculture delegated authority to
implement section 1242 to NRCS.
Section 1242 of the Food Security Act greatly expands the
availability of technical assistance to producers by encouraging other
potential providers of technical assistance to assist in the delivery
of technical services. To ensure that high quality technical services
are available to all producers, section 1242 requires the Secretary of
Agriculture to establish, by regulation, a system for ``approving
individuals and entities to provide technical assistance to carry out
programs under the (Farm Bill) * * * and establishing the amounts and
methods for payments for that assistance.''
This interim final rule establishes a certification process under
which NRCS may evaluate and approve individuals, entities, and public
agencies as eligible to provide conservation technical services for
certain conservation programs. The interim final rule establishes the
criteria by which NRCS will evaluate all potential providers of
technical assistance. NRCS will only make payment to a producer for
technical services obtained from a technical service provider that has
been certified by NRCS to provide such assistance.
The interim final rule distinguishes between certification of an
individual working under his or her own auspices and that of an
organization, such as a corporation or a public agency, which has
individuals working on its behalf. Certification of an individual means
the individual has the requisite education and technical expertise to
perform the technical services. Certification of an entity or public
agency means that the organization may receive payment for the services
provided by individuals working under its auspices, but the work must
be performed or warranted by certified individuals and the organization
must assume the liability for the quality of work performed.
The interim final rule also sets forth conditions and procedures by
which NRCS may determine that a certified technical service provider
has failed to provide producers high quality technical services and
thus, should not remain certified as a provider of technical assistance
for conservation programs under Title XII of the Food Security Act.
While section 1242 increases a producer's available sources of
technical assistance, it also maintains the options available to NRCS
to acquire assistance in meeting its own responsibilities under Title
XII. In particular, section 1242(b)(4) of the Food Security Act
provides that the Secretary may request the services of, and enter into
cooperative agreements or contracts with, non-Federal entities to
assist in providing technical assistance necessary to develop and
implement Title XII conservation programs. NRCS may utilize its
inherent contracting authority or the authority under section 714 of
the Agricultural Appropriations Act for FY 2001, Public Law 106-387, 7
U.S.C. 6962a, to obtain technical services. NRCS may also enter into a
cooperative agreement with a technical service provider or other
cooperator to stimulate the availability of technical assistance. NRCS
will only utilize technical assistance from technical service providers
that have been certified under the provisions of this interim final
rule.
NRCS has determined that producers will need the delivery of high
quality technical assistance immediately. Therefore, NRCS believes that
the provisions of this rule are appropriately promulgated as an interim
final rule.
Summary of Provisions
Through this rulemaking process, the Department seeks to establish
processes that provide efficient and effective technical services to
producers participating in USDA conservation programs in a manner that
optimizes conservation benefits. In particular, the Department aims to
provide a performance-based system where producers can take full
advantage of the marketplace and obtain cost-effective delivery of
quality technical services.
The regulations promulgated by this interim final rule are 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 process NRCS will utilize to evaluate a
technical service provider to determine whether such provider is
eligible to provide technical assistance under Title XII. Subpart C
sets forth the process and causes under which a technical service
provider may become decertified and, therefore, ineligible to provide
technical services.
Subpart A--General Provisions
Subpart A describes how program participants choose technical
service providers, and how program participants may receive payment
from the Department for those services. Specifically, the Department
will reimburse a program participant if they select a technical service
provider from the approved list of technical service providers and the
technical services provided meet all legal and program requirements.
The Department may also
[[Page 70121]]
pay the technical service provider directly if the program participant
submits an assignment of payment form.
Subpart A also describes how the Department will expand its
delivery of technical services to program participants. Though not in
the rule, the Department intends to establish in policy that it will
not hire additional Federal employees above its baseline staffing
levels unless it has first sought to meet the additional demand for
technical services from non-Federal sources through contracts,
contribution agreements, and cooperative agreements.
The Department must follow existing procurement and financial
assistance laws when it enters into transactions to expand the
availability of technical services. The types of transactions are
described in greater detail in the preamble discussion under Sec.
652.6.
Additionally, the Department and any technical service provider it
hires must abide by Federal disclosure and privacy laws, including the
Freedom of Information Act and the Privacy Act. However, the technical
service providers hired directly by program participants are not
subject to these legal requirements. Therefore, the Department
encourages program participants to ensure that their contracts with
their technical service providers provide for the appropriate
confidentiality of personal information.
Subpart A also addresses the quality assurance measures that the
Department will utilize to maintain high quality technical service
delivery. The Department may decertify technical service providers
based on information obtained through the quality assurance process.
Section 652.1, Definitions, sets forth the definitions for the
terms used throughout the regulation.
Section 652.2, Applicability, sets forth the purpose and scope of
the regulations for technical services. The purpose of the regulations
is to establish a system for expanding the delivery of technical
services available to producers under the Food Security Act.
Section 652.3, Administration, describes the basic responsibilities
NRCS has in the management of the technical service delivery process,
including certification, decertification, recertification, and
certification renewal. NRCS will establish the processes and procedures
for certification of technical service providers and will assess the
availability and utilization of such providers. NRCS wants to ensure
that technical service providers are available to producers. NRCS
encourages all sources of technical service providers to participate in
the delivery of conservation programs. In its management of the
technical service delivery process, NRCS will track payments for the
technical service provided by technical service providers. NRCS will
also track conservation accomplishments based on information reported
to NRCS by technical service providers pursuant to Sec. 652.4(g).
Historical relationships and agreements between USDA and
conservation partners will need to be evaluated, and modified as
needed, to avoid conflicts of interest, or the appearance thereof, as
those partners engage in providing technical services as technical
service providers in accordance with this rule.
Section 652.4, Technical service standards, sets forth the
technical service standards that all technical service providers must
meet in order to receive payment from the Department for the technical
services provided. In particular, all technical services provided by
technical service providers must meet applicable NRCS standards and
specifications. The regulations identify several of those standards but
are not exhaustive. NRCS National standards, and State standards and
specifications, may be found through links at the Web site http://
www.nrcs.usda.gov. NRCS establishes this minimum standard for technical
services to ensure uniformity among the various sources of technical
service providers, conformity with NRCS conservation program
requirements, and dependability of the quality of service that
producers will receive.
NRCS has historically encouraged the development and utilization of
new and innovative conservation practices through adoption of such
practices when proven effective, for example, practices related to air
quality. In particular, the Environmental Quality Incentives Program
provides for the utilization of such new and innovative conservation
practices. However, until NRCS has evaluated the effectiveness of such
practices, it will not provide payment for the technical services
needed to plan and implement new practices. Therefore, the interim
final rule requires that a technical service provider seek NRCS
approval prior to initiating technical services for a new or innovative
technology or practice.
To assist NRCS with its quality assurance process set forth in
Sec. 652.7, NRCS incorporated in Sec. 652.4 several requirements of
technical service providers. In particular, NRCS requires that the
technical service provider sign a written certification that the
technical services provided for a particular practice or plan complies
with all program requirements, legal requirements, and NRCS standards
and specifications, and is consistent with the conservation goals and
programs under which the assistance is given. This requirement makes it
clear that a technical service provider is responsible for the quality
of the assistance provided to either the producer or the Department.
NRCS requires a technical service provider to assume all legal
responsibility for the quality of the work provided. Thus, if a
producer implements a deficient conservation plan developed by a
technical service provider and implementation of the plan results in
harm or injury, the technical service provider, not the producer, is
liable. This provision protects a producer from liability that was not
caused through any fault of the producer. The producer is responsible
in all cases for complying with the terms and conditions of the program
contract or agreement, which includes meeting USDA technical standards
and specifications.
Language is also included in the regulations regarding
incorporation of low-cost alternatives, where appropriate, to address
the resource issues and meet the objectives of both the program and
program participant.
Finally, this section provides that NRCS is not contractually bound
to the program participant to provide reimbursement for technical
services or practice implementation that is not consistent with NRCS
standards and specifications. Where NRCS does not provide the technical
assistance for the development of a conservation plan incorporated into
its program agreements, NRCS reserves the right to ensure that a
program agreement is implemented in accordance with program
requirements, including requiring that practices meet NRCS standards
and specifications. This provision allows NRCS to continue to meet the
conservation program goals and objectives for which it has the
delegated responsibility.
This section also requires technical service providers to input
data into the NRCS conservation accomplishments tracking system. NRCS
will utilize this information as part of its quality assurance process
under Sec. 652.7.
Section 652.5, Program participant acquisition of technical
services, describes how program participants may obtain technical
services from sources other than the Department and receive
reimbursement for those technical services. This section describes that
a
[[Page 70122]]
program participant may obtain technical services from the Department
or any individual, entity, or public agency certified by NRCS under
this interim final rule to provide technical services.
If a producer wishes the Department to provide technical services,
he or she should contact NRCS at the local USDA Service Center. If the
producer wishes to utilize a different source of technical service, he
or she should obtain information from the Department about program
requirements and payment terms. To ensure necessary funds are available
to reimburse the program participant, the Department and the program
participant must incorporate and obligate under the program contract or
agreement the estimated amount of funds needed.
A producer must choose a certified technical service provider from
the appropriate NRCS approved list of technical service providers in
order to obtain reimbursement for the costs associated with those
services. The list of approved technical service providers for the
particular category of technical services will be available through the
NRCS home page on the Internet, or can be obtained from the local USDA
service center. In order to receive reimbursement, once the technical
services have been provided and meet program requirements, the program
participant would submit to NRCS or FSA, as appropriate, an invoice,
any supporting documentation, and a request for payment.
In many situations, a program participant needs to obtain technical
services prior to entering into a program contract or agreement with
either NRCS or the Farm Service Agency. NRCS or the Farm Service Agency
(collectively referred to as the Department) may reimburse a
participant for pre-program contract or agreement technical services
obtained to complete program related activities prior to entering a
program contract or agreement and develop a conservation plan. The
participant must provide to either NRCS or the Farm Service Agency an
invoice and documentation of the technical services provided by a
certified technical service provider in order to be reimbursed for
these costs.
The terms and conditions of a program contract or agreement will
provide for the reimbursement of the producer for technical services
provided by a certified technical service provider. The Department is
interested in developing a dynamic approach to its payment rates
schedule in order to ensure that its payment rates do not lag behind
the development of technological efficiencies that decrease the time
and price associated with the delivery of technical services.
The Department's goal in developing a method of setting payment
rates is to obtain the most competitive payment rates while ensuring
that program participants have access to the widest available range of
qualified technical service providers. The Department is seeking
comments on how to design rate payments that are transparent, easy to
implement, and ensure competition in program participant acquisition of
technical services. The Department intends to publish an amendment to
this interim final rule within the next 30 days that will explain in
detail the payment rate process. The Department is seeking comments on
how to design a rate setting process that would be easy to implement
yet sensitive to regional or local pricing variation.
The Department is considering whether to establish payment rates by
conducting a State by State solicitation of technical service prices
from individuals, private-sector entities, and public agencies in order
to ascertain the current market prices for delivering technical
services. If chosen, the Department would utilize an existing Internet
based notice posting system to solicit from technical service provider
sources their respective price data for particular technical services.
This process would involve electronically uploading a Departmental
``Sources Sought Notice'' to the posting system, requesting potential
technical service providers to submit a listing of service prices, and
consolidating the price data from all respondents. The Department would
analyze the information submitted pursuant to its solicitation as part
of its process for determining payment rates. After the first year of
operation, the Department would adjust the rates each year thereafter,
or more frequently if needed, using current market data it obtained
from technical service providers, an updated solicitation to all
sources, or a combination thereof.
In using the information obtained from this solicitation, the
Department could set a ``not-to-exceed'' rate. To ensure healthy
competition within the market, this rate could not be set so low as to
discourage all participation by viable technical service providers nor
could it be set so high as to result in wasteful federal expenditures.
To encourage competition, the Department is also considering options
that would create incentives for producers to choose the most efficient
provider of technical services in the market place, such incentives
could include providing a cost savings to program participants that
choose a technical service provider with a price below a ``not-to-
exceed'' rate.
The Department is also considering basing technical service
payments upon a flat rate. Under this option, the Department would pay
a flat rate for each project. Thus, if a project costs $20,000 to
install, the program participant would be reimbursed $4000, or 20% of
the project cost, for the technical services obtained from a technical
service provider. However, this approach may not adequately reflect the
actual price for technical services on any particular project and might
adversely affect obtaining technical services for projects that are
small or more complex in scope because the actual price for the design
could exceed the flat rate.
In addition, the Department is also considering basing technical
service payment rates based on its own costs to deliver the technical
services. Under this option, the Department would estimate the
technical service rates and establish not-to-exceed rates for use in
program contracts or agreements. These rates would not exceed the
Federal Government rates to deliver the same service. The Department is
interested in obtaining public comment on these or other feasible
methods for establishing payment rates that will provide the greatest
opportunity for the market place to inform the price of technical
services while providing maximum flexibility to program participants to
choose a technical service provider.
Section 652.6, Department delivery of technical services, describes
the types of legal instruments the Department may enter into to deliver
technical services to producers. The Department will provide technical
services directly to a producer when chosen by the producer to provide
those services. When Department baseline staffing levels do not meet
the demand for its technical services, the Department may procure
additional technical services through a procurement contract or a
cooperative agreement entered into under the authority of section 714
of the Agricultural Appropriations Act of 2001 (the 2001 Act), Public
Law 106-387, 7 U.S.C. 6962a. As mentioned above, the Department intends
to adopt by policy that it will seek to meet the additional demand for
technical services from non-Federal sources. To avoid confusion, ``non-
assistance'' cooperative agreements under section 714 are identified as
``contribution agreements'' to distinguish them from cooperative
agreements as defined by the Federal Grant and Cooperative Agreement
Act
[[Page 70123]]
(FGCAA), 31 U.S.C. 6301 et seq. The Department may also meet the
additional demand for technical services by stimulating the
availability of additional technical services through a cooperative
agreement as defined by the FGCAA.
NRCS utilizes contribution agreements for obtaining technical
services and receives from a contributing party financial and in-kind
donation of goods, services, and personal services. NRCS ensures
Federal funds are wisely spent by requiring that the level of
contribution by the other party justify the non-competitive nature of
the transaction. For transactions where NRCS seeks to obtain technical
services for a particular project or for more widespread programmatic
needs, NRCS will only enter into a contribution agreement with a
certified technical service provider where such a provider donates at
least 50% of the technical services needed.
Contribution agreements that do not include the provision of
technical services are outside of the scope of this rule, and NRCS will
evaluate the merit of entering into each such agreement based upon the
particular nature of the project and the level of contribution by the
other party.
For transactions where the Department seeks to stimulate the
expansion of the level of technical services provided to producers, the
Department may enter into a cooperative agreement that is governed by
the FGCAA and its implementing regulations and circulars.
The Department reaffirms its commitment to competitive cooperative
agreements by referencing in Sec. 652.6 the competition requirements
in 7 CFR part 3015. Section 652.6(b) identifies that the Chief of the
NRCS or his designee, or the Administrator of FSA as appropriate, are
authorized to determine that an exception to the competition
requirements are in the best interest of the Government and needed to
fulfill the objectives of the program.
The Department anticipates that most technical service providers
will be selected and hired directly by the program participant and paid
under the terms of the program contract or agreement entered into
between the program participant and the Department. However, because of
the anticipated increase in workload that the 2002 Farm Bill creates,
the Department may need to procure services from technical service
providers in meeting its own responsibilities to deliver conservation
program technical assistance.
Department policy encourages the expansion of technical services
provided by all sources, especially private and commercial sources.
Wherever appropriate and in the best interest of the Government, the
Department will utilize the procurement process to obtain any
additional technical services necessary to implement the conservation
programs. The interim final rule, in Sec. 652.6(b) indicates that the
Chief or the Administrator of FSA may limit the utilization of
cooperative agreements and contribution agreements in obtaining or
stimulating technical services in order to ensure openness and
competitiveness in the process.
Section 652.6(c) addresses an NRCS concern about the possibility of
unfair competitive advantage by the individuals, private-sector
entities, and public agencies with which NRCS may enter into a contract
or agreement. NRCS believes that a technical service provider hired
directly by NRCS to assist the agency with its responsibilities could
have an unfair competitive advantage over other technical service
providers when being selected by program participants. For example,
individuals and organizations hired by NRCS may have superior knowledge
regarding the technical service needs of particular producers that
would give them a competitive advantage over other providers. In
addition, NRCS is concerned that a technical service provider may
receive payment twice for performing the same work, once through the
contract or agreement with the Department and a second time through the
producer's program contract or agreement.
Therefore, NRCS requires in the interim final rule that a technical
service provider hired by NRCS to provide technical services to a
particular program participant is ineligible to receive a payment under
a program contract or agreement for that same program participant.
Section 652.7, Quality assurance, provides that NRCS will evaluate
the quality of the technical services provided by certified technical
service providers. This section provides for a process through which
NRCS will evaluate technical services performed by technical service
providers. NRCS requires under Sec. 652.4(g) that technical service
providers make available certain information that can be utilized in
its quality assurance process. While this information may be utilized
to decertify a technical service provider, the purpose is to discover
deficiencies in the technical service delivery and allow the technical
service provider to take remedial action before such decertification
action becomes necessary.
Subpart B--Certification
This subpart contains technical service provider criteria for
certification requirements; processes to certify individuals, private-
sector entities, and public agencies; requirements for recommending
organizations; and the process and requirements for certification
renewal.
In order to meet the requirements of 16 U.S.C. 3842(b)(3) regarding
``Interim Assistance,'' NRCS will consider entities and individuals who
are currently providing technical services through the Department under
a contract, cooperative agreement, or contribution agreement as
``conditionally certified'' to ensure the continued availability of
technical services from these providers for a transitional period
before this regulation is effective and implemented. The terms of this
conditional certification are: (1) The individual or entity must be
operating under a contract, cooperative agreement, or contribution
agreement that is in effect on the date of publication of this rule;
(2) the individual or entity must submit an Application for
Certification by March 1, 2003; and (3) the conditional certification
expires by either the date a Certification Agreement is entered or
September 30, 2003, whichever is earlier. These terms will allow
entities and individuals to continue to provide technical services
under their respective contracts, cooperative agreements, or
contribution agreements during FY 2003 until NRCS is able to evaluate
such individuals and organizations under the certification process set
forth in this part. Section 652.21(f) of this rule sets forth these
terms and conditions for conditional certification of individuals,
private-sector entities, and public agencies providing technical
services under current contracts, cooperative agreements, or
contribution agreements.
Additionally, NRCS will also consider individuals that are
certified under NRCS policies in place prior to the publication of this
interim final rule as conditionally certified. The terms of this
conditional certification are: (1) The individual or entity must have
been certified under such policies prior to the publication of this
interim final rule; (2) the individual or entity must submit an
Application for Certification by March 1, 2003; and (3) the conditional
certification expires either by the date a Certification Agreement is
entered or September 30, 2003, whichever is earlier. Section 652.21(g)
of this rule
[[Page 70124]]
sets forth these terms and conditions for conditional certification of
individuals who were certified under pre-existing NRCS policy.
NRCS believes that the availability of training is essential to the
successful implementation of the certification process. NRCS
anticipates that a substantial amount of training will be needed for
applicants to become certified as technical service providers. The
specific training needed will vary from State-to-State depending on the
type and quantity of technical services needed to address the
additional Title XII Farm Bill workload in each State, the overall
interest by applicants to become technical service providers, and the
private and public sector mix in providing technical services.
NRCS encourages the development and presentation of training
opportunities from a wide variety of sources. NRCS anticipates that
universities, colleges, land grant institutions, the Extension Service,
private entities, and other sources may be used by the Department to
develop and provide the training. NRCS is particularly interested in
comments from the public regarding all aspects of technical service
provider training.
Individuals interested in becoming certified are responsible for
obtaining the training they need to become certified as technical
service providers, for keeping their own training records current, and
for providing documentation for certification purposes on the training
they have received. Costs associated with becoming a technical service
provider, as well as maintaining or renewing certification, are the
responsibility of the individual seeking certification.
NRCS will publish on its home web page by December 31, 2002,
further instructions, guidance, forms, and the process related to the
submittal of applications for certification. NRCS will begin to accept
applications and recommendations for certification on January 2, 2003,
and will review these submittals as they are received. While NRCS may
enter into Certification Agreements with technical service providers
prior to March 1, 2003, such certifications will not be effective until
the effective date of this interim final rule.
NRCS is seeking comments and ideas for streamlining the
certification process to make it as efficient and effective as
possible. NRCS is also seeking input regarding methods to minimize the
burden of certification for applicants seeking certification for more
than one state. Of particular interest is how variation in State laws
and requirements should be addressed within a certification system.
Section 652.21, Certification criteria and requirements, sets forth
the certification criteria and other requirements for certification of
individuals. All individuals must meet the NRCS certification criteria
and requirements in order to be certified by the agency to provide
technical services to program participants and the Department. NRCS
requires that all certified individuals have the necessary training,
experience, and knowledge to perform the technical services for which
certification is sought. Because the technical services are performed
to assist producers to participate in Department conservation programs,
the certified individual must have working familiarity with Department
standards, specifications, and program requirements. These requirements
are set forth in Department manuals, handbooks, and other references
that are available on the web at http://www.nrcs.usda.gov to the
technical service provider.
In conjunction with the certification, NRCS will enter into a
Certification Agreement with the applicant. The Certification Agreement
documents the terms and conditions of the certification. Technical
service providers are certified for a three-year time period and may
have their certification renewed for subsequent time periods. The
interim final rule also provides that NRCS will establish and collect
fees related to the certification of technical service providers. NRCS
will make available to the public any fee schedule established under
this provision.
Section 652.22, Certification process for individuals, sets forth
the certification process for individuals to become certified. In order
to be considered for certification, individuals must: submit an
Application for Certification to NRCS, be recommended for certification
by a recommending organization as provided by Sec. 652.25, or be
included as part of the certification application submitted by a
private-sector entity or public agency. Whatever avenue is chosen by
the individual, NRCS will determine within 60 days of receipt of an
application if the applicant meets the requirements for certification
and will enter into a Certification Agreement with the applicant at the
time of certification. After execution of a Certification Agreement,
NRCS then place the individual's name on the approved list of technical
service providers for that State. The list will be available on the
Department's Web site. A payment will not be made for technical
services provided by the individual under this part until the
individual is certified and placed on the approved list.
The Application for Certification and the Certification Agreement
will be available on the National and State NRCS Web sites in a PDF
format for easy accessibility and use.
Section 652.23, Certification process for private-sector entities,
sets forth the certification process for private-sector entities.
Certification of an entity means that the entity may receive payment
for the services provided by individuals working under its auspices,
but the work must be warranted first by a certified individual within
the entity, and the organization must assume the liability for the
quality of work performed.
Thus, a private-sector entity may be approved to provide technical
services and receive payment for those services as long as the entity
has at least one certified individual acting on its behalf. In
addition, the entity must identify an official of the entity that is
authorized to receive official correspondence related to the status of
the entity's certification. The interim final rule provides that an
individual(s) may seek certification as part of the application package
of the private-sector entity.
All individuals warranting technical services on behalf of the
entity must be individually certified and identified on the entity's
Application and Certification Agreement. Non-certified individuals may
provide input to the technical services provided by the entity, but the
work products developed by these individuals must be adopted and
warranted by one of the certified individuals identified on the
entity's Application and Certification Agreement. Thus, if a non-
certified engineer drafts an engineering drawing, the engineer who is
certified to provide such engineering services must sign the final
drawing and warrant that it meets the requirements set forth in Sec.
652.4. Individuals working under the private-sector's auspices must act
within the terms and conditions of a signed Certification Agreement
between NRCS and the entity.
NRCS may decertify the entire entity or any individual or
individuals working under the auspices of such entity in accordance
with the provisions of Subpart C.
Section 652.24, Certification process for public agencies, sets
forth the certification process for public agencies. Public agencies
possess through their employees certain expertise and skills to carry
out their mission that may match the expertise and skills needed to
[[Page 70125]]
provide technical services to program participants and the Department.
The interim final rule distinguishes between certification of a
public agency under this section and certification of an individual
working under the individual's own auspices. Certification of a public
agency means that the agency may receive payment for the services
provided by individuals working under its auspices, but the work must
first be warranted by a certified individual within the agency, and the
public agency must assume liability for the quality of the work
provided.
Thus, a public agency may be approved to provide technical services
and receive payments for those services as long as the agency has at
least one certified individual acting on its behalf. In addition, the
agency itself must identify an official that is authorized to receive
official correspondence related to the status of the agency's
certification. The interim final rule provides that an individual may
seek certification as part of the application package of the public
agency.
Employees of the public agency that warrant technical services on
behalf of the agency must be individually certified and identified by
the public agency as those employees authorized to perform the
technical services in the Application and Certification Agreement. Just
as described for private-sector entities, a non-certified employee of a
public agency may provide input into the technical services provided by
the public agency, but the work products developed by these individuals
must be adopted and warranted by one of the certified individuals
identified on the agency's Application and Certification Agreement.
These individuals must operate within the terms and conditions of a
signed Certification Agreement between the agency and NRCS.
NRCS believes that there exists a potential appearance of
impropriety where public officials provide similar duties in both their
official public and private capacities. NRCS is concerned that program
participants may be confused about the capacity under which a certified
individual that works for a public agency is providing services to
them. Public employees are held to a higher standard of conduct when
providing assistance than private sector individuals and entities
providing a similar service to a customer. For example, public agencies
have certain disclosure and confidentiality requirements regarding
information they obtain from producers that do not apply to private
sector individuals and entities.
While nearly all public agencies already have restrictions
regarding outside employment of its employees, the Department requires,
as part of the public agency's certification that its employees may not
provide technical services as an individual or as a member of a public-
sector entity outside of the auspices of that agency.
Section 652.25, Alternative application process for individual
certification, provides for an alternative to the process set forth in
Sec. 652.22 for individuals to be considered for certification by
NRCS. In lieu of submitting an Application for Certification directly
to NRCS pursuant to Sec. 652.22, individuals may be considered for
certification through the recommendation of an organization
(``recommending organization'') with which NRCS has a memorandum of
understanding or other appropriate agreement providing for such
recommendation. A recommending organization is a professional
organization, association, licensing board or other entity that NRCS
has determined has an accreditation program to train, test, and
evaluate individuals for competency in a particular area or areas of
technical service delivery and whose accreditation program meets the
certification criteria set forth in Sec. 652.25.
NRCS's use of, or partnership with, recommending organizations is
intended to streamline the certification process to the greatest extent
possible by eliminating the need for each individual to submit an
Application for Certification and by recognizing the specific
accreditation expertise of various organizations.
Prior to entering into an agreement with a recommending
organization, NRCS determines whether the organization's accreditation
program meets NRCS standards and specifications for the particular
technical services to be provided. As set forth in Sec. 652.25(b), the
agreement between NRCS and a recommending organization contains
specific requirements related to how the organization recommends
individuals to NRCS for certification.
NRCS makes the final determination whether to certify for each
individual recommended by an organization. The authority of the agency
to certify is non-delegable and is made by the appropriate NRCS
official based upon his or her assessment of whether an applicant meets
the criteria as set forth in this part. NRCS may terminate an agreement
with a recommending organization if NRCS determines that the
organization has violated any of the terms of the agreement or if any
other problems arise in the organization's certification
recommendations. In considering whether to terminate any agreement with
a recommending organization, the agency's duty to ensure that only
qualified individuals are certified to be technical service providers
is paramount.
Section 652.26, Certification renewal, sets forth the process and
requirements for certification renewal for individuals, private-sector
entities, and public agencies. NRCS believes that technical service
provider certifications should have a finite time limit in order to
ensure that the certification requirements are still being met and to
reaffirm the terms and conditions of the current Certification
Agreement. Accordingly, all technical service providers must renew
their certification every three years. Technical service providers
decertified in accordance with the provisions in Subpart C, who are
seeking to become re-certified after the period of decertification has
expired, must reapply for certification through the regular application
process.
NRCS is providing a streamlined process for certification renewal
in the interim rule. A standard renewal form, Certification Renewal,
will be available on the National and State NRCS Web sites in a PDF
format. The technical service provider must complete and submit their
request for Certification Renewal to NRCS at least 60 days prior to the
current certification expiration date. All renewals are in effect for
three years and may be subsequently renewed for three-year periods.
Subpart C--Decertification
In order to protect the public interest and to ensure the adequate
provision of technical assistance under its conservation programs, the
Department's policy is to certify and maintain certification of only
those individuals who meet the criteria set forth in this rule and who
act responsibly in the provision of technical assistance. The
decertification process set forth in subpart C is the means by which
the Department carries out this policy. The Department is promulgating
these regulations to provide for a decertification process because
neither the National Appeals Division nor Government-wide Suspension
and Debarment regulations apply to the decertification of technical
service providers. Specifically, the National Appeal Division's
regulations apply to appeals related to program participants
[[Page 70126]]
as that term is defined by 7 CFR 11.1. Technical service providers are
not ``program participants.'' The decertification process described
herein is more akin to the Government-wide Debarment and Suspension
(Nonprocurement) regulations at 7 CFR part 3017, which are specifically
excluded from the definition of program participant in 7 CFR 11.1.
However, the Government-wide Suspension and Debarment regulations at 7
CFR 3017.110(a)(3)(iii) exclude conservation programs from
applicability.
The dual goals of the decertification process are: (1) To establish
an efficient administrative process by which technical service
providers who fail to meet NRCS standards and specifications in the
provision of technical service or otherwise fail to meet the terms of
the Certification Agreement, i.e., act responsibly, are decertified
from providing technical services to the Department and to program
participants, and (2) to ensure adequate due process to the technical
service providers who are proposed for decertification. The purpose of
the decertification process is to protect the public interest by
removing those technical service providers from the approved list who
fail to act responsibly.
Section 652.31, Policy, sets forth general guidelines regarding the
causes for decertification. It is not the Department's intent to
decertify an otherwise responsible technical service provider for minor
inconsistencies with NRCS standards and specifications if those
failures are infrequent events, and the technical service provider
works in good faith to remedy any problems. The Department encourages
technical service providers to act proactively in remedying any
technical services that fail to meet NRCS standards and specifications.
To the extent it is able, NRCS will work with those technical service
providers who ask for assistance in addressing deficiencies in their
provision of technical service. The Department will decertify those
technical service providers who demonstrate a failure to act
responsibly in the provision of technical service.
Accordingly, Sec. 652.32, Causes of decertification, sets forth
the causes for decertification. These causes include failures in the
provision of technical service to the extent that the practice is
ineffective or environmentally harmful and/or other violations of the
terms of the Certification Agreement. In addition, a catch-all
provision is included under this section to cover any other cause of a
serious or compelling nature demonstrating a technical service
provider's failure to fulfill the terms of their Certification
Agreement.
Section 652.33, Notice of proposed decertification, provides that
the State Conservationist will send to any technical service provider
proposed for decertification a Notice of Proposed Decertification. This
section also sets forth the required content of the Notice of Proposed
Decertification. In addition, this section provides that the Notice
will identify the certified individuals who work under the auspices of
a technical service provider (such as a public agency or private-sector
organization), who are also being considered for decertification.
Certified individuals have a separate right of appeal. In order to
appeal, certified individuals must follow the process and deadlines set
forth in this subpart.
Section 652.34, Opportunity to contest decertification, sets forth
the process, including the deadlines, for a technical service provider
to contest any Notice of Proposed Decertification.
Section 652.35, State Conservationist decision, provides the time
lines for the State Conservationist's decision regarding whether to
decertify, the basis for the decision, and the required notices to the
technical service provider of the State Conservationist's decision.
Section 652.36, Appeals of decertification decisions, provides for
appeal by the technical service provider of a State Conservationist's
decision to the Chief, deadlines for appeal, issuance of the final
decision, and the contents of the Chief's final decision. Section
652.36 also provides that the Chief may delegate his duties as the
decertifying officer to an NRCS employee in the National Office.
Section 652.37, Period of decertification, provides general
guidelines for the decertifying official's (the State Conservationist
or Chief, as appropriate) determination regarding the period of
decertification. These guidelines are meant to be flexible while at the
same time providing technical service providers with a general idea of
how the period of decertification is decided upon. As is true of the
entire decertification process, determination of the length of the
decertification period is intended to protect the public interest by
removing from the list of approved providers those technical service
providers who fail to act responsibly in the provision of technical
service. The length of the decertification period is commensurate with
the degree to which the technical service provider has violated the
terms of the Certification Agreement, including meeting NRCS standards
and specifications. It is within the decertifying official's discretion
to decide the period of decertification based upon the general
guidelines, the facts of the particular case, and any mitigating
factors.
Section 652.38, Scope of decertification, provides guidance on the
scope of a decertification. Decertification applies to an entire entity
and all organizational elements thereunder of a technical service
provider, whether the provider is a private sector entity or a public
agency. The decertifying official must determine, based upon the facts
of a situation, whether to decertify the entire organization (including
the individuals identified as authorized to provide technical services
under the auspices of such organization); the organization only; a
particular individual or individuals acting under the auspices of that
organization; and/or an organizational element of the public agency or
private sector entity. For example, the decertifying official may
decertify the private sector entity or public agency and a particular
individual or individuals, but not all the individuals identified in
the Certification Agreement, if the decertifying official finds that
the actions of the entity or public agency and/or particular authorized
individuals cannot be imputed to all the individuals identified as
authorized to provide technical services under the auspices of the
organization. The intent of this subpart is to decertify only those
organizations or elements thereof and employees that are deficient in
the provision of technical services. In making this determination, the
decertifying official will also consider the terms of the Certification
Agreement itself, which require the public agency and private sector to
be responsible for the actions of their employees and/or agents.
As set forth in Sec. 652.39, Mitigating factors, the decertifying
official takes into consideration any mitigating factors presented by
the technical service provider when deciding whether to decertify as
well as the scope and the period of decertification. Even though
mitigating factors may be presented by a technical service provider,
the decertifying official may still decide to decertify. This section
provides general examples of mitigating factors. For example,
subsection (c) provides as a mitigating factor actions a technical
service provider takes to prevent future deficiencies in the provision
of technical services which led to the Notice of Proposed
Decertification, including deficiencies in the provision of technical
service or in otherwise complying with the terms of the
[[Page 70127]]
Certification Agreement. Technical service providers are encouraged to
mitigate any deficiencies in the provision of technical services.
Section 652.40, Effect of decertification, sets forth the effect of
a decertification determination. During the time period of
decertification, NRCS will not procure or cooperate with a decertified
technical service provider nor will the Department reimburse a program
participant for the services of a decertified provider. Current or on-
going procurements, cooperative agreements or program agreements will
not be affected retroactively by the listing of a technical service
provider as decertified.
In addition, Sec. 652.40 provides that the agency shall maintain a
list of decertified technical service providers. When a technical
service provider is decertified in one State, the effect is to
decertify that provider in all States. NRCS will work diligently to
keep the list current. The list will be available to the public through
NRCS's Web site and at USDA Service Centers. It is the program
participant's responsibility to check the list prior to securing a
technical service provider's services. Further, the rule requires that
no program participant may knowingly hire a decertified technical
service provider.
Section 652.41, Effect of filing deadlines, provides that the
failure of a technical service provider to meet filing deadlines
results in the forfeiture of appeal rights and also clarifies the
deadline for contest and appeal filings. These policies assist in the
efficient and fair administration of the decertification process.
Finally, section 652.42, Recertification, states the agency's
recertification policy for those technical service providers who have
been decertified.
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this interim final rule is a significant
regulatory action and has been reviewed by the Office of Management and
Budget (OMB). Pursuant to section 6(a)(3) of Executive Order 12866,
NRCS conducted an economic analysis of the potential impacts associated
with this rulemaking, and included the analysis as part of a Regulatory
Impact Analysis document prepared for this interim final rule. The
analysis estimates that the technical service provider process will
have a beneficial impact on the Nation's natural resources by
accelerating adoption of conservation practices, increasing
environmental and resource benefits, maintaining and enhancing long-
term productivity of the resource base, reducing non-point source
pollution damage, reducing farming costs, and contributing to an
increase in net farm income. A copy of this analysis is available upon
request from Gary Gross, Resource Conservationist, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or by
e-mail to gary.gross@usda.gov; attn: Technical Service Provider
Assistance--Economic Analysis, or at the following Web address: http://
www.nrcs.usda.gov.
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988. The provisions of this interim final rule are
not retroactive. The USDA has not identified any State or local laws
that are in conflict with this regulation or that would impede full
implementation of this rule. Nevertheless, in the event that such
conflict is identified, the provisions of this interim final rule
preempt State and local laws to the extent such laws are inconsistent
with this rule.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, it
has been determined that this rule will not have a significant impact
on a substantial number of small entities as defined by the Act. This
rule sets forth the process by which entities could, on a voluntary
basis, become certified providers. Therefore, a regulatory flexibility
analysis is not required for this interim final rule. This interim
final rule sets forth the policies and procedures for the provision of
technical service provider assistance, which involves the voluntary
participation of technical service providers.
National Environmental Policy Act
The regulations promulgated by this rule do not authorize any
action that may negatively affect the human environment. Accordingly,
an analysis of impacts under the National Environmental Policy Act has
not been performed. The technical service provider process will help
implement new and existing USDA conservation programs which are subject
to the environmental analyses pursuant to the National Environmental
Policy Act.
Paperwork Reduction Act
Section 2702 of the Farm Security and Rural Investment Act of 2002
requires that the promulgation of regulations and the administration of
Title II of said act be carried out without regard to the chapter 35 of
title 44 of the United States Code (commonly known as the Paperwork
Reduction Act). Accordingly, these regulations and the forms, and other
information collection activities need to administer technical service
provider assistance under these regulations, are not subject to review
by the Office of Management and Budget under the Paperwork Reduction
Act.
NRCS is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general to provide the public the option of
submitting information or transacting business electronically to the
maximum extent possible and NRCS in particular to provide the public
the option of submitting information or transacting business
electronically to the maximum extent possible. The forms and other
information collection activities required for participation in
technical services delivery under this rule are not fully implemented
for the public to conduct business with NRCS electronically. However,
the required standard forms discussed in this rule will be available
electronically through the USDA eForms Web site at www.sc.egov.usda.gov
for downloading. The regulation will be available at the NRCS homepage
at www.nrcs.usda.gov. Applications may be submitted as provided for in
this rule. At this time, electronic submission is not available.
However, NRCS is currently working on fully implementing electronic
submission so that it is available in the future.
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.
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
interim final rule as not major.
[[Page 70128]]
Civil Rights Impact Analysis
A Civil Rights Impact Analysis has been completed regarding this
rule. The review reveals no factors indicating any disproportionate
adverse civil rights impacts for participants in NRCS programs and
services who are minorities, women, or persons with disabilities. A
copy of this analysis is available upon request from Gary Gross,
Resource Conservationist, Natural Resources Conservation Service, PO
Box 2890, Washington, DC 20013-2890, or by e-mail to
gary.gross@usda.gov; attn: Technical Service Provider Assistance--Civil
Rights Impact Analysis, or at the following web address: http://
www.nrcs.usda.gov.
List of Subjects in 7 CFR Part 652
Natural Resources Conservation Service, Soil conservation,
Technical assistance, Water resources.
For the reasons stated in the preamble, the Natural Resources
Conservation Service hereby amends Title 7 of the Code of Federal
Regulations as set forth below:
Accordingly, Title 7 of the code of Federal Regulations is amended
by adding a new part 652 to read as follows:
PART 652--TECHNICAL SERVICE PROVIDER ASSISTANCE
Subpart A--General Provisions
Sec.
652.1 Definitions.
652.2 Applicability.
652.3 Administration.
652.4 Technical service standards.
652.5 Program participant acquisition of technical services.
652.6 Department delivery of technical services.
652.7 Quality assurance
Subpart B--Certification
652.21 Certification criteria and requirements.
652.22 Certification process for individuals.
652.23 Certification process for private-sector entities.
652.24 Certification process for public agencies.
652.25 Alternative application process for individual certification.
652.26 Certification renewal.
Subpart C--Decertification
652.31 Policy.
652.32 Causes of decertification.
652.33 Notice of proposed decertification.
652.34 Opportunity to contest decertification.
652.35 State Conservationist decision.
652.36 Appeals of decertification decisions.
652.37 Period of decertification.
652.38 Scope of decertification.
652.39 Mitigating factors.
652.40 Effect of decertification.
652.41 Effect of filing deadlines.
652.42 Recertification.
Authority: 16 U.S.C. 3842.
Subpart A--General Provisions
Sec. 652.1 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 State Conservationist in
each State to provide technical services to a program participant or to
the Department.
Chief means the Chief of NRCS or designee.
Certification means the action taken by NRCS to approve:
(1) An individual as meeting the minimum NRCS criteria for
providing technical service for conservation planning or a specific
conservation practice or system; or
(2) An entity or public agency as having an employee or employees
that meet the minimum NRCS criteria for providing technical service for
conservation planning or a specific conservation practice or system.
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.
Contract means the same as that term is defined in the Federal
Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
Contribution agreement means the acquisition of technical services
entered into under the authority of 7 U.S.C. 6962a.
Cooperative agreement means the same as that term is defined in the
Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
Department means the Natural Resources Conservation Service, the
Farm Service Agency, or any other agency or instrumentality of the
United States Department of Agriculture that is assigned responsibility
for all or a part of a conservation program subject to this part.
Entity means a corporation, joint stock company, association,
limited partnership, limited liability partnership, limited liability
company, nonprofit organization, a member of a joint venture, or a
member of a similar organization.
Program participant or participant means a person who is eligible
to receive technical or financial assistance under a conservation
program covered by this rule.
Public agency means a unit or subdivision of Federal, State, local,
or Tribal government, other than the Department.
Recommending organization means a professional organization,
association, licensing board or similar organization with which NRCS
has entered into an agreement to recommend qualified individuals for
NRCS certification as technical service providers for specific
technical services.
Secretary means the Secretary of the United States Department of
Agriculture.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin Area.
Technical service means the technical assistance provided by
technical service providers, including conservation planning, and/or
the design, layout, and installation of approved conservation
practices.
Technical service provider means an individual, entity, or public
agency certified by the State Conservationist and placed on the
approved list to provide technical services to program participants or
to the Department.
Sec. 652.2 Applicability.
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.
Sec. 652.3 Administration.
(a) As provided in this part, the Department will provide technical
assistance to program participants directly, or at the option of the
program participant, through a technical service provider in accordance
with the requirements of this part.
(b) The Chief, Natural Resources Conservation Service (NRCS) will
direct and supervise the administration of the regulations in this
part.
(c) NRCS will:
(1) Provide overall leadership and management for the development
and administration of a technical service provider process;
(2) Consult with the Farm Service Agency and other appropriate
agencies and entities concerning the availability and utilization of
technical service providers and the implementation of technical
service;
(3) Establish policies, procedures, guidance, and criteria for the
certification, recertification, decertification, certification renewal,
[[Page 70129]]
and implementation of the use of technical service providers;
(4) Certify, decertify, and recertify technical service providers
as well as renew certification for technical service providers.
(5) Encourage development and availability of training
opportunities for individuals interested in becoming technical service
providers;
(6) Track payment and accomplishment data related to technical
services delivery; and
(7) Provide quality assurance for technical services provided by
technical service providers.
(d) The Department will not make payments under a program contract
or agreement, a contract, contribution agreement, or cooperative
agreement for technical services provided by a technical service
provider unless the technical service provider is certified by NRCS and
is identified on the approved list.
(e) The Department will evaluate the terms and conditions of
existing agreements with technical service providers to ensure that
they are consistent with this part.
Sec. 652.4 Technical service standards.
(a) All technical services provided by technical service providers
must meet USDA standards and specifications as set forth in
Departmental manuals, handbooks, guides, and other references for soils
mapping and natural resources information, conservation planning,
conservation practice application, and other areas of technical
assistance.
(b) The Department must approve all new technologies and innovative
practices, including applicable standards and specifications, prior to
a technical service provider initiating technical services for those
technologies and practices.
(c) Pursuant to any contract or agreement with NRCS or with the
program participant, the technical service provider must warrant in
writing that the particular technical service provided:
(1) Complies with all applicable Federal, State, Tribal, and local
laws and requirements;
(2) Meets applicable Department standards, specifications, and
program requirements;
(3) Is consistent with the particular conservation program goals
and objectives for which the program agreement or contract was entered
into by the Department and the program participant; and
(4) Incorporates, where appropriate, low-cost alternatives that
would address the resource issues and meet the objectives of both the
program and program participants for which assistance is provided.
(d) Technical service providers, including entities and public
agencies, must assume all legal responsibility for the technical
services provided. Technical service providers, including entities and
public agencies, must indemnify and hold the Department and the program
participant harmless for any costs, damages, claims, liabilities, and
judgments arising from past, present, and future negligent or wrongful
acts or omissions of the technical service provider in connection with
the technical service provided.
(e) The Department will not be in breach of any program contract or
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 program participant is responsible for complying with the
terms and conditions of the program contract or agreement, which
includes meeting USDA technical standards and specifications for any
technical services procured by the participant or obtained in
accordance with this part.
(g) The technical service provider shall report in the NRCS
conservation accomplishment tracking system the appropriate data
elements associated with the technical services provided to the
Department or program participant.
Sec. 652.5 Program participant acquisition of technical services.
(a) Program participants may obtain technical assistance directly
from the Department or from a certified technical service provider.
(b) To acquire technical assistance directly from the Department,
program participants should contact their local USDA Service Center.
(c) To acquire technical services from a technical service
provider, program participants must:
(1) Comply with the program agreement when acquiring technical
services; and
(2) Select a certified technical service provider from the approved
list of technical service providers.
(d) To obtain payment for technical services, the program
participant must submit to the Department an invoice, supporting
documentation, and a request for payment. The Department may pay a
program participant for technical services provided by a technical
service provider hired by the program participant through:
(1) A reimbursement payment made directly to the program
participant; or
(2) Upon receipt of an assignment of payment from the program
participant, a payment made directly to the technical service provider.
(e) The Department will identify in the particular program contract
or agreement the payment provisions for technical service providers
hired directly by the program participant.
(f) Unless authorized under paragraph (g) of this section, the
program participant must enter into a program contract or agreement
with the Department prior to acquisition of technical services by a
technical service provider.
(g) A program participant may be reimbursed for technical service
provider costs incurred prior to entering into a program contract or
agreement as long as the individual meets the eligibility requirements
for participating in the program. These costs include program related
activities that need to be accomplished prior to entering into a
program contract or agreement as well as the development of a
conservation plan that is subsequently incorporated into the program
contract or agreement. To be reimbursed for these technical service
provider costs, the program participant must:
(1) Utilize the services of a certified technical service provider
from the NRCS approved list of technical service providers; and
(2) Provide to NRCS invoice and related documentation of the
technical services provided.
(h) Program participants must authorize in writing to the
Department the disclosure of their records on file with the Department
that they wish to make available to specific technical service
providers.
(i) Payments for technical services will only be made 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.
Sec. 652.6 Department delivery of technical services.
(a) The Department may procure the services of certified technical
service providers through a contract or a contribution agreement to
assist the Department in providing technical services necessary to
develop and implement the conservation programs subject to this part.
The Department shall only enter into a contribution agreement with a
certified technical service provider if the certified
[[Page 70130]]
technical service provider contributes at least 50 percent of the
technical services needed to accomplish the goals of the project under
which the contribution agreement is entered. The Chief may establish
minimum contribution rates or limit the utilization of contribution
agreements.
(b) The Department may also enter into a cooperative agreement
after competition as specified by part 3015 of this title if the
principal purpose of the cooperative agreement is to transfer a thing
of value to carry out a public purpose of support or stimulation
authorized by law. The Chief or the Administrator, Farm Service Agency
(FSA) may limit the utilization of cooperative agreements by NRCS or
FSA, respectively. Only the Chief, NRCS or the Administrator, FSA may
make a determination that competition is not deemed appropriate for a
particular transaction and such determination shall only be based where
a non-competitive award is in the best interest of the Government and
necessary to the accomplishment of the goals of the program.
(c) A certified technical service provider, or an individual
providing technical services under the auspices of a technical service
provider's certification, shall not be eligible to receive payment
under a program contract or agreement for technical services provided
directly to a program participant if that technical service provider
has entered into a contract, cooperative agreement, or contribution
agreement with NRCS to provide technical services to that program
participant.
(d) The Department will, to the extent practicable, ensure that the
amounts paid for technical service under this part are consistent
across conservation program areas, unless specific conservation program
requirements include additional tasks.
Sec. 652.7 Quality assurance.
(a) NRCS will review, in consultation with the Farm Service Agency,
as appropriate, the quality of the technical services provided by
technical service providers. As a requirement of certification,
technical service providers will be required to develop and maintain
documentation in accordance with Departmental manuals, handbooks, and
technical guidance for the technical services provided, and furnish
this documentation to NRCS and the program participant when the
particular technical service is completed. NRCS may utilize information
obtained through its quality assurance process, documentation submitted
by the technical service provider, and other relevant information in
determining how to improve the quality of technical service, as well as
determining whether to decertify a technical service provider under
subpart C of this part.
(b) Upon discovery of a deficiency in the provision of technical
service through its quality assurance process or other means, NRCS
will, to the greatest extent practicable, send a notice to the
technical service provider detailing the deficiency and requesting
remedial action by the technical service provider. Failure by the
technical service provider to promptly remedy the deficiency, or the
occurrence of repeated deficiencies in providing technical services,
may trigger the decertification process set forth in subpart C of this
part. A failure by NRCS to notice any deficiency does not affect any
action under the decertification process. Technical service providers
are solely responsible for providing technical services that meet all
NRCS standards and specifications.
Subpart B--Certification
Sec. 652.21 Certification criteria and requirements.
(a) To qualify for certification an individual must:
(1) Have the technical training, education, or experience to
perform the level of technical assistance for which certification is
sought;
(2) Meet any applicable licensing or similar qualification
standards established by State law;
(3) Demonstrate, through documentation of training or experience,
familiarity with NRCS guidelines, criteria, standards, and
specifications as set forth in the applicable NRCS manuals, handbooks,
field office technical guides, and supplements thereto for the planning
and applying of specific conservation practices and management systems
for which certification is sought; and
(4) Not be decertified in any State under subpart C of this part at
the time of application for certification.
(b) To qualify for certification an entity or public agency must
have a certified individual providing, in accordance with this part,
technical services on its behalf.
(c) A technical service provider, as part of the certification by
NRCS, must enter into a Certification Agreement with NRCS specifying
the terms and conditions of the certification, including adherence to
the requirements of this part, and acknowledging that failure to meet
these requirements may result in ineligibility to receive payments from
the Department, either directly or through the program participant, for
the technical services provided or may result in decertification.
(d) NRCS certification shall be in effect for three years unless
the technical service provider is decertified in accordance with
subpart C of this part. NRCS certifications expire at the end of three
years unless they are renewed in accordance with Sec. 652.25.
(e) NRCS may, pursuant to 31 U.S.C. 9701, establish and collect
fees for the certification of technical service providers.
(f) An individual, private-sector entity, or public agency is
conditionally certified provided they had entered into a contract,
cooperative agreement, or contribution agreement with the Department
prior to November 21, 2002 to provide technical services and they
submit an Application for Certification by March 1, 2003. An
individual, private-sector entity, or public agency with conditional
certification status under this paragraph may continue to provide
technical services in accordance with the terms and conditions of the
above-described contract, cooperative agreement, or contribution
agreement. Conditional certification shall expire either by the date
NRCS and the individual, private-sector entity, or public agency enter
into a Certification Agreement, as described in Sec. 652.22(c)(1) or
September 30, 2003, whichever is earlier.
(g) An individual is conditionally certified if the individual was
certified under NRCS policy in effect prior to November 21, 2002 and
submits an Application for Certification by March 1, 2003. An
individual with conditional certification status under this paragraph
may continue to provide technical services to the Department and to
program participants in accordance with the above-described prior
certification. Conditional certification shall expire either by the
date NRCS and the individual enter into a Certification Agreement, as
described in Sec. 652.22(c)(1) or September 30, 2003, whichever is
earlier.
Sec. 652.22 Certification process for individuals.
(a) In order to be considered for certification as a technical
service provider, an individual must:
(1) Submit an Application for Certification to NRCS in accordance
with this section;
(2) Request certification through a recommending organization
pursuant to Sec. 652.25; or
(3) Request certification through an application submitted by a
private-
[[Page 70131]]
sector entity or public agency pursuant to Sec. 652.23 or Sec. 652.24
as appropriate.
(b) The application must contain the documentation demonstrating
that the individual meets all requirements of paragraph (a) of Sec.
652.21.
(c) NRCS will review within 60 days the application submitted by an
individual under paragraph (a)(1) of this section and determine whether
the applicant meets the requirements set forth in paragraph (a) of
Sec. 652.21. If all requirements are met, NRCS will:
(1) Enter into a Certification Agreement and certify the applicant
as qualified to provide technical services for a specific category or
categories of technical service;
(2) Place the applicant on the list of approved technical service
providers when certified; and
(3) Make available to the public the list of approved technical
service providers by category of technical services.
(d) NRCS may decertify an individual in accordance with the
decertification process set forth in subpart C of this part.
Sec. 652.23 Certification process for private-sector entities.
(a) A private sector entity that applies for certification must
identify, and provide supporting documentation, that an individual, or
individuals, authorized to act on its behalf:
(1) Has been certified as an individual in accordance with Sec.
652.22; or
(2) Seeks certification as an individual as part of the private-
sector entity's certification and ensures that the requirements set
forth in Sec. 652.21(a) are contained within the private-sector
entity's application to support such certification.
(b) NRCS will determine whether the individual(s) identified in the
private-sector entity's application meets the certification standards
set forth in Sec. 652.22 for the specific services the entity wishes
to provide.
(c) NRCS will review within 60 days the application submitted by an
entity. If NRCS determines that all requirements for the private-sector
entity and the identified individual(s) are met, NRCS will complete the
actions described in paragraphs (c)(1) through (c)(3) of Sec. 652.22.
The Certification Agreement entered into with the private-sector entity
shall:
(1) Identify the certified individuals who are authorized to
perform technical services on behalf of and under the auspices of the
entity's certification;
(2) Require that the entity have, at all times, an individual who
is a certified technical service provider authorized to act on the
entity's behalf;
(3) Require that the entity promptly provide to NRCS for NRCS
approval an amended Certification Agreement when the list of certified
individuals performing technical services under its auspices changes;
(4) Require that any work performed by non-certified individuals be
warranted by a certified individual who is authorized to act on the
entity's behalf; and
(5) Require that the entity assume liability for the quality of
work performed by any individual working under the auspices of its
certification.
(d) NRCS may, in accordance with the decertification process set
forth in this part, decertify the private sector entity, the certified
individual(s) acting under the auspices of its certification, or both
the private sector entity and the certified individual(s) acting under
the auspices of its certification.
Sec. 652.24 Certification process for public agencies.
(a) A public agency that applies for certification must identify,
and provide supporting documentation, that an individual or individuals
authorized to act on its behalf:
(1) Has been certified as an individual in accordance with Sec.
652.22; or
(2) Seeks certification as an individual as part of the public
agency's certification and sufficient information as set forth in Sec.
652.21(a) is contained within the public agency's application to
support such certification.
(b) NRCS shall determine whether the individual identified in the
public agency's application meets the certification standards set forth
in Sec. 652.22.
(c) NRCS will review within 60 days the application submitted by a
public agency. If NRCS determines that all requirements for the public
agency and the identified individual(s) are met, NRCS will perform the
actions described in paragraph (c)(1) through (c)(3) of Sec. 652.22.
The Certification Agreement entered into with the public agency shall:
(1) Identify the certified individuals that are authorized to
perform technical services on behalf of and under the auspices of the
public agency's certification;
(2) Require that the public agency have, at all times, an
individual that is a certified technical service provider and is an
authorized official of the public agency;
(3) Require that the public agency promptly provide to NRCS for
NRCS approval an amended Certification Agreement when the list of
certified individuals performing technical services under its auspices
changes;
(4) Require that any work performed by non-certified individuals be
warranted by a certified individual that is authorized to act on the
public agency's behalf;
(5) Require that the public agency assume liability for the quality
of work performed by any individual working under the auspices of its
certification; and
(6) Prohibit any individual who provides technical services under
the auspices of the public agency's certification from providing
services to program participants and the Department as an individual or
part of a private-sector entity.
(d) NRCS may, in accordance with the decertification process set
forth in subpart C of this part, decertify the public agency, the
certified individual(s) acting under its auspices, or both the public
agency and the certified individual(s) acting under its auspices.
Sec. 652.25 Alternative application process for individual
certification.
(a) NRCS may enter into an agreement, including a memorandum of
understanding or other appropriate instrument, with a recommending
organization that NRCS determines has an adequate accreditation program
in place to train, test, and evaluate candidates for competency in a
particular area or areas of technical service delivery and whose
accreditation program NRCS determines meets the certification criteria
as set forth for the technical services to be provided.
(b) Recommending organizations will, pursuant to an agreement
entered into with NRCS:
(1) Train, test, and evaluate candidates for competency in the area
of technical service delivery;
(2) Recommend to the NRCS official individuals who it determines
meet the NRCS certification requirements of Sec. 652.21(a) for
providing specific categories of technical services;
(3) Inform the recommended individuals that they must meet the
requirements of this part, including entering into a Certification
Agreement with NRCS, in order to provide technical services under this
part;
(4) Reassess individuals that request renewal of their
certification pursuant to Sec. 652.26 through the recommendation of
the organization; and
(5) Notify NRCS of any concerns or problems that may affect the
organization's recommendation concerning the individual's
[[Page 70132]]
certification, recertification, certification renewal, or technical
service delivery.
(c) Pursuant to an agreement with NRCS, a recommending organization
may provide to the appropriate NRCS official a current list of
individuals identified by the recommending organization as meeting NRCS
criteria as set forth in Sec. 652.21(a) for specific categories of
technical service and recommend that the NRCS official certify these
individuals as technical service providers in accordance with this
part.
(d) NRCS will make a determination within 60 days. If NRCS
determines that all requirements for certification are met by the
recommended individual(s), NRCS will perform the actions described in
paragraphs (c)(1) through (c)(3) of Sec. 652.22.
(e) NRCS may terminate an agreement with a recommending
organization if concerns or problems with its accreditation program,
its recommendations for certification, or other requirements under the
agreement arise.
Sec. 652.26 Certification renewal.
(a) NRCS certifications are in effect for three years and
automatically expire unless they are renewed for an additional three
years in accordance with this section.
(b) A technical service provider may request renewal of an NRCS
certification by:
(1) Submitting a complete certification renewal application to NRCS
or through a private sector entity, a public agency, or a recommending
organization to NRCS at least 60 days prior to expiration of the
current certification;
(2) Providing verification on the renewal form that the
requirements of this part are met; and
(3) Agreeing to abide by the terms and conditions of a
Certification Agreement.
(c) All certification renewals are in effect for three years and
may be renewed for subsequent three-year periods in accordance with
this section.
Subpart C--Decertification
Sec. 652.31 Policy.
In order to protect the public interest, it is the policy of NRCS
to maintain certification of those technical service providers who act
responsibly in the provision of technical service, including meeting
NRCS standards and specifications when providing technical service to
program participants. This section, which provides for the
decertification of technical service providers, is an appropriate means
to implement this policy.
Sec. 652.32 Causes for decertification.
A State Conservationist, in whose State a technical service
provider is certified to provide technical service, may decertify the
technical service provider, in accordance with these provisions, for
the following reasons:
(a) Failure to meet NRCS standards and specifications in the
provision of technical services rendering to the extent that the
practice is ineffective or environmentally harmful;
(b) Violation of the terms of the Certification Agreement,
including but not limited to, a demonstrated lack of understanding of,
or an unwillingness or inability to implement, NRCS standards and
specifications for a particular practice for which the technical
service provider is certified, or the provision of technical services
for which the technical service provider is not certified; and
(c) Any other cause of a serious or compelling nature as determined
by NRCS that demonstrates the technical service provider's inability to
fulfill the terms of the Certification Agreement in providing technical
service.
Sec. 652.33 Notice of proposed decertification.
The State Conservationist will send by certified mail, return
receipt requested, to the technical service provider proposed for
decertification a written Notice of Proposed Decertification, which
will contain the cause(s) for decertification, as well as any
documentation supporting decertification. In cases where a private
sector entity or public agency is being notified of a proposed
decertification, any certified individuals working under the auspices
of such organization who are also being considered for decertification
will receive a separate Notice of Decertification and will be afforded
separate appeal rights following the process set forth below.
Sec. 652.34 Opportunity to contest decertification.
To contest decertification, the technical service provider must
submit in writing to the State Conservationist, within 20 calendar days
from the date of receipt of the Notice of Proposed Decertification, the
reasons why the State Conservationist should not decertify, including
any mitigating factors as well as any supporting documentation.
Sec. 652.35 State Conservationist decision.
Within 30 calendar days from the date of the notice of proposed
decertification, the State Conservationist will issue a written
determination. If the State Conservationist decides to decertify, the
decision will set forth the reasons for decertification, the period of
decertification, and the scope of decertification. If the State
Conservationist decides not to decertify the technical service
provider, the technical service provider will be given written notice
of that determination. The decertification determination will be based
on an administrative record, which will be comprised of: The Notice of
Proposed Decertification and supporting documents, and, if submitted,
the technical service provider's written response and supporting
documentation. Both a copy of the decision and administrative record
will be sent promptly by certified mail, return receipt requested, to
the technical service provider.
Sec. 652.36 Appeals of decertification decisions.
(a) Within 20 calendar days from the date of receipt of the State
Conservationist's decertification determination, the technical service
provider may appeal, in writing, to the Chief of NRCS. The written
appeal must state the reasons for appeal and any arguments in support
of those reasons. If the technical service provider fails to appeal,
the decision of the State Conservationist is final.
(b) Final decision. Within 30 calendar days of receipt of the
technical service provider's written appeal, the Chief or his designee,
will make a final determination, in writing, based upon the
administrative record and any additional information submitted to the
Chief by the technical service provider. The decision of the Chief, or
his designee, is final and not subject to further administrative
review. The Chief's determination will include the reasons for
decertification, the period of decertification, and the scope of
decertification.
Sec. 652.37 Period of decertification.
The period of decertification will not exceed three years in
duration and will be decided by the decertifying official, either the
State Conservationist or Chief, as applicable, based upon their
weighing of all relevant facts and the seriousness of the reasons for
decertification, mitigating factors, if any, and the following general
guidelines:
(a) For failures in the provision of technical service for which
there are no mitigating factors, e.g., no remedial action by the
technical service provider, a maximum period of three years
decertification;
(b) For repeated failures in the provision of technical assistance
for
[[Page 70133]]
which there are mitigating factors, e.g., the technical service
provider has taken remedial action to the satisfaction of NRCS, a
maximum period of one to two years decertification; and
(c) For a violation of certification agreement terms, e.g, failure
to possess technical competency for a listed practice, a period of one
year or less, if the technical service provider can master such
competency within a year period.
Sec. 652.38 Scope of decertification.
(a) When the technical service provider is a private sector entity
or public agency, the decertifying official may decertify the entire
organization, including all the individuals identified as authorized to
provide technical services under the auspices of such organization. The
decertifying official may also limit the scope of decertification, for
example, to one or more specifically named individuals identified as
authorized to provide technical services under the organization's
auspices or to an organizational element of such private sector entity
or public agency. The scope of decertification will be set forth in the
decertification determination and will be based upon the facts of each
decertification action, including whether actions of particular
individuals can be imputed to the larger organization.
(b) In cases where specific individuals are decertified only, an
entity or public agency must promptly file an amended Certification
Agreement removing the decertified individual(s) from the Certification
Agreement. In addition, the entity or public agency must demonstrate,
to the satisfaction of the State Conservationist, that the entity or
public agency has taken affirmative steps to ensure that the
circumstances resulting in decertification have been addressed.
Sec. 652.39 Mitigating factors.
In considering whether to decertify, the period of decertification,
and scope of decertification, the deciding official will take into
consideration any mitigating factors. Examples of mitigating factors
include, but are not limited to the following:
(a) The technical service provider worked, in a timely manner, to
correct any deficiencies in the provision of technical service;
(b) The technical service provider took the initiative to bring any
deficiency in the provision of their technical services to the
attention of NRCS and sought NRCS advice to remediate the situation;
and
(c) The technical service provider took affirmative steps to
prevent any failures in the provision of technical services from
occurring in the future.
Sec. 652.40 Effect of decertification.
(a) The Department will not make payment under a program contract
for the technical services of a decertified technical service provider
that were provided during the period of decertification. Likewise, NRCS
will not procure the services of a decertified technical service
provider during the period of decertification.
(b) National decertification list. NRCS will maintain a list of
decertified technical service providers. NRCS will remove decertified
providers from the list of certified providers. Program participants
must not knowingly hire a decertified technical service provider. It is
the program participant's responsibility to check the decertified list
before hiring a technical service provider. Decertification of a
technical service provider in one State decertifies the technical
service provider from providing technical services under current
programs in all States, the Caribbean Area, and the Pacific Basin Area.
Sec. 652.41 Effect of filing deadlines.
A technical service provider's failure to meet the filing deadlines
under this subpart will result in the forfeiture of appeal rights. All
filings must be received by NRCS no later than the close of business (5
p.m.) the last day of the filing period.
Sec. 652.42 Recertification.
A decertified technical service provider may apply to be re-
certified under the certification provisions of this part after the
period of decertification has expired. A technical service provider may
not utilize the certification renewal process in an attempt to be
recertified after being decertified.
Signed in Washington, DC, on November 7, 2002.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 02-29301 Filed 11-20-02; 8:45 am]
BILLING CODE 3410-16-P