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Rules and Regulations Federal Register

52283 

Vol. 70, No. 170 

Friday, September 2, 2005 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1405 

RIN 0560–AH35 

Collection of State Commodity 

Assessments 

AGENCY: Commodity Credit Corporation, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule sets forth the 

Commodity Credit Corporation’s (CCC) 

policy with respect to implementation 

of the discretionary authority provided 

to it by Public Law 108–470. This act 

allows for the collection of assessments 

levied on the marketings of agricultural 

commodities. Generally, these 

assessments are required, under State 

and Federal law, to be paid from CCC 

marketing assistance loan proceeds by a 

producer who markets the commodity 

or are required to be collected by the 

first purchaser of the commodity. This 

final rule adopts, with changes, the 

proposed rule published in the Federal 

Register on June 7, 2005 (70 FR 33043). 

DATES: This rule is effective September 

2, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Graham, 202–720–9154, 

e-mail: Kimberly.Graham@usda.gov. 

Persons with disabilities who require 

alternative means for communication 

(Braille, large print, audiotape, etc.) 

should contact the USDA Target Center 

at (202) 720–2600 (voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Discussion of Final Rule 

On June 7, 2005, CCC issued a 

proposed rule with respect to the 

manner in which it proposed to collect 

agricultural commodity assessments 

owed by a producer to a State or State 

agency when the producer had obtained 

a CCC marketing assistance loan. (70 FR 

33043). The rule provided that CCC 

would deduct from marketing assistance 

loan proceeds an amount equal to any 

assessment required under State or 

Federal law to be paid by a producer 

who markets the commodity, or by the 

first purchaser of the commodity. The 

preamble of that rule described the 

history of CCC’s role in collecting 

commodity assessments, the statutory 

authority allowing CCC to engage in the 

collection of commodity program 

assessments, and the necessity to codify 

the process for collecting commodity 

assessments. With respect to the 

collection of State assessments, the 

major provisions of the proposed rule 

included: (1) A request for CCC to 

engage in the collection activity must 

initially be submitted by the Governor 

of the State; (2) such request must 

identify the entity that the Governor has 

designated to enter into the collection 

agreement with CCC; (3) a statement 

from the Attorney General, at any time 

prior to final execution of the 

agreement, that the agreement is in 

compliance with applicable State laws 

and the provisions of section 1(a) of 

Public Law 108–470; (4) collection of 

the assessment, as requested by the 

Governor, may be at either the time the 

marketing assistance loan is disbursed 

to the producer or at the time of 

forfeiture of the commodity to CCC, but 

not both; and (5) the State agrees to 

indemnify CCC for any costs incurred in 

collecting the assessment, including 

costs relating to resolution of disputes 

arising from the requested collection of 

the assessment. 

With respect to assessments collected 

under Federal statutes, the proposed 

rule provides that collections will be 

made as provided in such manner as 

may be agreed upon by CCC and the 

entity to whom the Secretary has 

delegated responsibility to otherwise 

engage in collection activities. 

Comments and Changes to Final Rule 

The 30-day comment period for the 

proposed rule closed on July 7, 2005. 

CCC received 36 responses from entities 

or persons, which included 22 

agricultural commodity associations, 

nine producers, two Agency employees, 

two Designated Marketing Associations 

(DMA’s), one State Department of 

Agriculture and one State Senator. In 

general, the majority of the responses 

support the intent and implementation 

of the proposed regulation. Seven 

commenters opposed the collection and 

deduction of commodity assessments 

from a producer’s marketing assistance 

loan proceeds and five commenters 

support the proposed regulation as 

written. These comments were 

submitted without any additional 

explanations. CCC analyzed the public 

comments received and has decided to 

adopt the proposed rule, with some 

slight modifications as discussed below 

based on these comments. 

One respondent requested specific 

information regarding the number of 

forfeited loans in the State of South 

Dakota. This comment did not address 

provisions of the proposed rule and was 

not within the scope of the proposed 

rule. 

One commenter stated producers are 

better served by collecting the 

assessments at forfeiture rather than at 

loan disbursement. The commenter 

identified two specific reasons for 

collecting the assessment at the time of 

forfeiture rather than at loan 

disbursement. The first reason suggested 

that certified farm-stored marketing 

assistance loans may not accurately 

reflect the producer’s harvested 

quantity; therefore, the assessment 

amount collected may not be accurate. 

The actual quantity delivered in 

satisfaction of the marketing assistance 

loan is determined at the time the 

commodity is sold or forfeited. The 

quantity delivered may differ from the 

quantity pledged as collateral for the 

marketing assistance loan. Collection of 

additional assessment amounts may be 

necessary. The second reason suggested 

producers may oppose the collection of 

commodity assessments at the time of 

loan making because the producer is 

responsible for the repayment of the full 

loan amount disbursed plus interest, if 

the producer repays the marketing 

assistance loan at principal plus 

interest. Therefore, the producer would 

be paying interest on the assessment 

amount deducted from the loan 

proceeds. CCC believes the proposed 

rule supports Public Law 108–470; 

therefore, these comments are not 

adopted and no changes were made. 

One commenter suggested that, in the 

case of an approved Cooperative 

Marketing Association (CMA) or 

Designated Marketing Association 

(DMA), the entire marketing assistance 

52284 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations 

loan be disbursed to the CMA or DMA 

and the CMA or DMA be responsible for 

deducting the applicable commodity 

assessment and remitting the 

commodity assessment to the State 

entity. An approved CMA or DMA is 

eligible to receive marketing assistance 

loans or LDP’s on behalf of their eligible 

producer members. CCC agrees with the 

commenter and believes it would be 

more difficult and complex to handle 

individual producer members’ multistate commodity assessment deductions. 

Since the CMA and DMA have 

administrative processes in place to 

monitor producer members’ marketing 

assistance loan and LDP amounts and 

cooperative pool sale amounts for its’

members amounts, CCC believes the 

CMA and DMA will ensure that fair and 

accurate distribution of the commodity 

assessment deductions will be made to 

the specific State entity. Therefore, the 

comments are adopted and such 

changes are included in the final rule. 

More specific responses addressed 

particular provisions of the rule with 

respect to the collection of State 

commodity assessments. Some 

responses contained multiple 

comments. These comments are 

discussed below on a section-by-section 

basis, along with the changes that have 

been made to the interim rule. 

Section 1405.9(b)(1)–(2) 

Nine respondents opposed the 

provisions in section 1405.9(b)(1) and 

(2) that require the Governor of the State 

to request that the assessment be 

collected and the Attorney General of 

the State, or a person authorized to act 

on behalf of the Attorney General, 

provide CCC an opinion that the 

collection activity is authorized by State 

law and complies with the provisions of 

section 1(a) of Public Law 108–470. 

Most of the respondents suggested that 

the request from the Governor was 

superfluous since the state commodity 

commissions are created by State statute 

and are agencies of the State. It was 

suggested that a request from a state 

commission and a copy of the enabling 

legislation should be deemed sufficient 

for the purpose of making the initial 

request. Commenters also believe that 

obtaining a separate opinion from the 

Attorney General would be costly, time 

consuming, and redundant. In prior 

years, CCC has routinely required that 

approval from the Office of the Attorney 

General for a State be obtained by the 

party entering into such an agreement 

with CCC in order to ensure that such 

party has the authority to bind the State 

with respect to all of the provisions of 

the agreement. Specifically, CCC is 

concerned that such party must be able 

to obligate the State to reimburse CCC 

for any costs it may incur in the event 

CCC is sued by a party who objects to 

the collection of the assessment on 

behalf of the State. Accordingly, CCC 

will continue to require that such 

approval has been obtained before CCC 

will enter into an agreement to collect 

the assessment. 

Section 1405.9(c)(1)–(2) 

Several comments opposed the 

provisions in sections 1405.9(c)(1) and 

(2) that requires the State to indemnify 

CCC for any costs incurred in collecting 

the commodity assessment and that the 

producer have the ability to request 

from the State a refund of the 

assessment collected from the 

producer’s marketing assistance loan. 

Several respondents expressed 

uncertainty as to whether the costs 

would include CCC administrative costs 

associated with routinely collecting and 

processing assessments. Commenters 

also expressed opposition towards the 

indemnification provision, if the 

provision included those types of 

administrative costs. The action of CCC 

in collecting State authorized 

commodity assessments provides no 

benefit to CCC and results in the 

expenditure of funds appropriated to 

FSA; the loss of these expenditures 

directly affects the ability of FSA to 

undertake its own activities. 

Accordingly, CCC has determined, since 

the beneficiary of this action is the State 

or State agency requesting the 

assessment be collected, that the costs of 

such action should not be borne by CCC 

or FSA. 

With respect to allowing the producer 

to request from the State a refund of the 

collected assessment, CCC is required 

by statute to provide a certain levels of 

assistance to producers. By deducting 

state commodity assessments from the 

marketing assistance loan proceeds and 

not at the time of actual marketing 

increases the risk of the producer paying 

double assessments. A double 

assessment would result in a reduction 

of the statutory level of assistance 

required to be provided by CCC. Also, 

CCC is not responsible for tracking 

double assessments or for making 

refunds of double assessment 

collections to the producer. For that 

reason the final rule retains this 

requirement for the agreement; however, 

the final rule will clarify that the 

mandatory refund is applicable to 

refunds of double assessment 

collections. 

Executive Order 12866 

This rule is issued in conformance 

with Executive Order 12866, was 

determined to be not significant, and 

has not been reviewed by the Office of 

Management Budget. 

Regulatory Flexibility Act 

It has been determined that the 

Regulatory Flexibility Act is applicable 

to this final rule. 

Environmental Assessment 

The environmental impacts of this 

final rule have been considered 

consistent with the provisions of the 

National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. 4321 et seq., the 

regulations of the Council on 

Environmental Quality (40 CFR parts 

1500–1508), and the FSA regulations for 

compliance with NEPA, 7 CFR part 799. 

FSA concluded that the rule requires no 

further environmental review because it 

is categorically excluded. No 

extraordinary circumstances or other 

unforeseeable factors exist which would 

require preparation of an environmental 

assessment or environmental impact 

statement. 

Executive Order 12988 

This final rule has been reviewed in 

accordance with Executive Order 12988. 

This final rule preempts State laws that 

are inconsistent with it. This rule is not 

retroactive. Before any legal action may 

be brought regarding a determination 

under this rule, the administrative 

appeal provisions set forth at 7 CFR 

parts 11 and 780 must be exhausted. 

Executive Order 12372 

This program is not subject to the 

provisions of Executive Order 12372, 

which require intergovernmental 

consultation with State and local 

officials. See the notice related to 7 CFR 

part 3014, subpart V, published at 48 FR 

29115 (June 24, 1983). 

Unfunded Mandates Reform Act of 

1995. 

The rule contains no Federal 

mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

for State, Local, and tribal governments 

or the private sector. Thus, this rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

Paperwork Reduction Act 

Section 1601(c) of the 2002 Act 

provides that the promulgation of 

regulations and the administration of 

Title I of the 2002 Act shall be made 

without regard to chapter 5 of title 44 

of the United States Code (the 

Paperwork Reduction Act). Accordingly, 

these regulations and the forms and 

other information collection activities 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Rules and Regulations 52285 

needed to administer the program 

authorized by these regulations are not 

subject to review by OMB under the 

Paperwork Reduction Act. 

Executive Order 12612 

This rule does not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

The provisions contained in this rule 

will not have substantial direct effect on 

States or their political subdivisions or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

Federal Assistance Programs 

The title and number of the Federal 

assistance program found in the Catalog 

of Federal Domestic Assistance to which 

this final rule applies are Commodity 

Loans and Loan Deficiency Payments, 

10.051. 

List of Subjects in 7 CFR Part 1405 

Agricultural commodities, Feed 

grains, Grains, Loan programs—

agriculture, Oilseeds, Price support 

programs, Reporting and record keeping 

requirements. 

■ Accordingly, 7 CFR part 1405 is 

amended as follows: 

PART 1405—LOANS, PURCHASES, 

AND OTHER OPERATIONS 

■ 1. The authority citation for part 1405 

is revised to read as follows: 

Authority: 7 U.S.C. 1515; 7 U.S.C. 7991(e); 

15 U.S.C. 714b and 714c; and Public Law 

108–470. 

■ 2. Add § 1405.9 to read as follows: 

§ 1405.9 Commodity assessments. 

(a) CCC will deduct from the proceeds 

of a marketing assistance loan an 

amount equal to the amount of an 

assessment otherwise required to be 

remitted to a State agency under a State 

statute by the producer of the 

commodity pledged as collateral for 

such loan or by the first purchaser of 

such commodity subject to the 

requirements of paragraph (b) of this 

section. 

(1) The assessment will be collected 

in one of the following ways, as 

requested by the State, but not both: 

(i) When the proceeds of the loan are 

disbursed; or 

(ii) When the commodity pledged as 

collateral for the loan is forfeited to 

CCC, in which case CCC will collect 

from the producer the amount of the 

assessment submitted by CCC to the 

State. 

(2) CCC will deduct from the proceeds 

of a marketing assistance loan an 

amount equal to the amount of an 

assessment otherwise authorized to be 

remitted to a federally authorized entity 

under a Federal statute by the producer 

of the commodity pledged as collateral 

for such loan or the first purchaser of 

such commodity in the manner agreed 

to by CCC and the entity to whom the 

Secretary of Agriculture has authorized 

to collect such assessments. 

(b) CCC will collect commodity 

assessments authorized under a State 

statute when: 

(1) The State entity has: 

(i) Requested that the assessment be 

collected; 

(ii) Identified whether the assessment 

is to be collected at the time the loan 

proceeds are disbursed or at the time the 

commodity is forfeited to CCC; 

(iii) Identified the person who may 

enter into an agreement with CCC that 

sets forth the obligations of the State 

and CCC with respect to the collection 

of the assessment; and 

(iv) Provided an opinion from the 

Office of the Attorney General to CCC 

that concludes the person signing the 

agreement may obligate the State to 

comply with the agreement and the 

provisions of Public Law 108–470 have 

been met. 

(2) The agreement described in 

paragraph (c) of this section has been 

executed by the appropriate State 

official and CCC. 

(c) CCC will enter into an agreement 

with an authorized State official to 

collect commodity assessments when 

the actions set forth in paragraphs (b)(1) 

and (2) of this section have been 

completed. Such agreement will contain 

the obligations and responsibilities of 

the State and CCC. All such agreements 

will include provisions that provide: 

(1) The State will indemnify CCC for 

any costs incurred in the collection of 

the assessment including costs incurred 

with respect to resolution of disputes 

arising from the requested collection of 

the assessment and for administrative 

costs incurred by CCC in the collection 

of the assessment; 

(2) The State, in cases where an 

assessment has been collected two or 

more times with respect to the same 

quantity of the commodity subject to the 

assessment, will refund the amount of 

the excess collection to the producer. 

(3) The agreement may be terminated 

by either party upon 30 days notice. 

(4) The State, in cases where the 

marketing assistance loan is made by a 

cooperative marketing association or a 

designated marketing association 

approved by CCC, or any other similar 

entity that is approved by CCC, to obtain 

such a loan on behalf of its members 

may enter into individual arrangements 

with such entity to facilitate the 

collection of the assessment with the 

approval of CCC. 

Signed in Washington, DC, on August 17, 

2005. 

James R. Little, 

Executive Vice President, Commodity Credit 

Corporation. 

[FR Doc. 05–17500 Filed 9–1–05; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2004–19536; Directorate 

Identifier 2004–NM–86–AD; Amendment 39–

14247; AD 2005–18–07] 

RIN 2120–AA64 

Airworthiness Directives; McDonnell 

Douglas Model DC–8–11, DC–8–12, 

DC–8–21, DC–8–31, DC–8–32, DC–8–

33, DC–8–41, DC–8–42, and DC–8–43 

Airplanes; DC–8–50 Series Airplanes; 

DC–8F–54 and DC–8F–55 Airplanes; 

DC–8–60 Series Airplanes; DC–8–60F 

Series Airplanes; DC–8–70 Series 

Airplanes; and DC–8–70F Series 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The FAA is superseding an 

existing airworthiness directive (AD), 

which applies to certain McDonnell 

Douglas transport category airplanes. 

That AD currently requires repetitive 

inspections for cracking of the lower 

cargo doorjamb corners, and corrective 

action if necessary. That AD provides 

for optional terminating action for 

certain repetitive inspections for certain 

airplanes. For certain other airplanes, 

that AD requires modification of the 

lower cargo doorjamb corners. This new 

AD adds airplanes to the applicability. 

The existing AD was prompted by 

reports of fatigue cracks in the fuselage 

skin in the lower cargo doorjamb 

corners; this AD is prompted by the 

inadvertent omission of certain 

airplanes from the existing applicability. 

We are issuing this AD to ensure that 

the unsafe condition will be addressed 

on all affected airplanes so that cracking 

in the lower cargo doorjamb corners is 

detected and corrected before it can 

result in rapid decompression of the 

fuselage and consequent reduced 

structural integrity of the airplane. 

DATES: Effective October 7, 2005. 

On April 29, 2004 (69 FR 15234, 

March 25, 2004), the Director of the