Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56113 

dairy farmers described in § 1033.12(b)) 

and handlers described in § 1000.9(c), as 

reported in § 1033.30(a), is not less than 

40 percent of the milk received from 

dairy farmers, including milk diverted 

pursuant to § 1033.13, subject to the 

following conditions: 

* * * * * 

(d) A plant located in the marketing 

area and operated by a cooperative 

association if, during the months of 

December through July 30 percent, 

during the month of August 35 percent 

and during the months of September 

through November 40 percent or more 

of the producer milk of members of the 

association is delivered to a distributing 

pool plant(s) or to a nonpool plant(s) 

and classified as Class I. Deliveries for 

qualification purposes may be made 

directly from the farm or by transfer 

from such association’s plant, subject to 

the following conditions: 

* * * * * 

(2) The 30 percent delivery 

requirement for the months of December 

through July may be met for the current 

month or it may be met on the basis of 

deliveries during the preceding 12- 

month period ending with the current 

month. 

* * * * * 

(e) * * * 

(1) The aggregate monthly quantity 

supplied by all parties to such an 

agreement as a percentage of the 

producer milk receipts included in the 

unit during the months of August 

through November is not less than 45 

percent and during the months of 

December through July is not less than 

35 percent; 

* * * * * 

■ 3. Section 1033.13 is amended by: 

■ (a) Revising paragraph (d)(4). 

■ (b) Adding paragraph (e). 

The revisions read as follows: 

§ 1033.13 Producer milk. 

* * * * * 

(d) * * * 

(4) Of the total quantity of producer 

milk received during the month 

(including diversions but excluding the 

quantity of producer milk received from 

a handler described in § 1000.9(c) or 

which is diverted to another pool plant), 

the handler diverted to nonpool plants 

not more than 50 percent in each of the 

months of August through February and 

60 percent in each of the months of 

March through July. 

* * * * * 

(e) Producer milk shall not include 

milk of a producer that is subject to 

inclusion and participation in a 

marketwide equalization pool under a 

milk classification and pricing plan 

imposed under the authority of another 

government entity. 

Dated: September 20, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–19086 Filed 9–23–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1430 

RIN 0560–AH28 

2004 Dairy Disaster Assistance 

Payment Program 

AGENCIES: Commodity Credit 

Corporation, USDA. 

ACTION: Final rule. 

SUMMARY: This rule sets forth the 

regulations for the 2004 Dairy Disaster 

Assistance Payment Program. This 

program will assist dairy producers by 

providing payments to those who 

suffered dairy production and milk 

spoilage losses due to hurricanes in 

2004. 

DATES: This rule is effective on 

September 26, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Danielle Cooke, Price Support Division, 

Farm Service Agency, United States 

Department of Agriculture, STOP 0512, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0512. 

Telephone: (202) 720–1919; e-mail: 

Danielle.Cooke@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Discussion of Final Rule 

This rule finalizes the proposed rule 

published in the Federal Register May 

25, 2005 (70 FR 30009). The 30-day 

comment period for the proposed 2004 

Dairy Disaster Assistance Payment 

Program (DDAP) rule closed on June 24, 

2005. The proposed rule provided that 

the DDAP program would be based on 

hurricane related dairy production and 

dairy spoilage losses suffered during the 

months of August through October 2004 

in counties declared a disaster by the 

President in 2004 due to hurricane. The 

program will end at the conclusion of 

the application period and 

disbursement of allotted funds. The 

DDAP program will operate under 

regulations codified in 7 CFR part 1430. 

Among other provisions, the proposed 

rule provided that in cases where the 

producers had been paid for qualified 

dumped milk the producer would still 

qualify for payments related to that 

milk. Also, the rule did not provide for 

adjustments in payments based on cow 

herd size. Rather, the rule provided for 

payments to be made based on changes 

in milk production from a set base 

amount. Also, among other provisions, 

the rule provided that in the case the 

limited program funds were not 

sufficient to pay all claims for lost 

production and for dumped milk, then 

priority would be given in making 

payments to those persons whose losses 

over the whole period were greater than 

20 percent. It was provided additionally 

in the proposed rule that the prices at 

which payments would be made would 

be amounts set out in the rule which 

were derived from a series of reported 

‘‘mailbox’’ prices. On these aspects and 

all others, comment was invited. 

Comments and Changes to Final Rule 

During the 30-day comment period 

the Agency received public comments 

from two U.S. Senators, ten U.S. 

congressmen, one dairy cooperative, one 

advocacy group and two private 

citizens. Some responses contained 

multiple comments. 

Of the total comments received during 

the public comment period, two 

respondents opposed the program 

indicating that private insurance should 

adequately compensate dairy producers 

monetarily for losses rather than the 

taxpayers or Government. One of those 

respondents also believed that the 

assistance being provided by the Agency 

was duplicative to that of Federal 

Emergency Management Agency 

(FEMA) and that it was misleading for 

Congress to insert a statute for 

agriculture in a non-related military 

spending bill. No changes have been 

made in the rule based on these 

comments. The agency is charged with 

implementing statutory provisions as 

written and has done so in the final 

rule. It is not understood to be the case 

that the relief in the rule duplicates that 

provided elsewhere, but provision is 

made in the rule to address that 

possibility. 

Public comments and suggestions 

were sought for paying milk marketing 

cooperatives directly for milk that was 

dumped. Several public comments were 

received in support of direct payment of 

DDAP benefits to a milk handler or 

dairy marketing cooperative rather than 

directly to the producer for spoiled milk 

that was dumped as a result of the 

hurricanes for which the dairy 

marketing cooperative or milk handler 

compensated the dairy producer. 

Respondents indicated that marketing 

cooperatives have adequate records to 

verify dumped production and confirm 

payment to producers made by the dairy 

56114 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

marketing cooperative or milk handler. 

Respondents also believed that the 

precedent of direct payments to 

marketing cooperatives has been 

established in past USDA programs. 

Also, one respondent suggested that 

producers would be compensated twice 

for the same loss if payment is made 

directly to a producer in a dairy 

operation for dumped milk that was 

paid for by the dairy marketing 

cooperative or milk handler. The 

Agency determined that no change was 

warranted. The statute provides for 

payments to producers. The proposed 

rule set out a fair plan for all losses and 

does not prohibit private readjustments. 

Several comments were received from 

the public regarding payment rates 

being based on the average monthly 

‘‘mailbox’’ milk price as provided by the 

applicable State Marketing Order as 

reported by the USDA, Agricultural 

Marketing Service (AMS) during the 

eligible months. The ‘‘mailbox’’ milk 

price, the pricing basis incorporated 

into the proposed rule, is defined by 

AMS as: ‘‘The net pay price received by 

dairy farmers for milk and includes all 

payments received for milk sold and all 

costs associated with marketing the 

milk. Price is a weighted average for the 

reporting area and is reported at the 

average butterfat test.’’ The respondents 

suggested using, instead of the mailbox 

milk price, the Federal Milk Marketing 

Order blend prices during the eligible 

months. Respondents suggested that the 

Federal Milk Marketing Order blend 

prices are more accurate because they 

adjust for location differences and 

recognize the regional costs of 

production. The payment plan proposed 

provides fair compensation and 

sufficient differentiation. No change was 

found to be warranted. 

Many respondents requested 

clarification regarding the limitation on 

multiple benefits that prohibit a 

producer from being compensated more 

than once for the same loss. 

Specifically, respondents wanted to 

ensure that benefits received from the 

Emergency Conservation Program (ECP) 

did not preclude a DDAP program 

applicant from receiving DDAP benefits. 

The Agency does not believe that this 

point requires a change in the rule, but 

notes that ECP benefits are understood 

to be different from those provided for 

in this program. 

Comments were requested on the 

method of payment at two levels in the 

event of inadequate funds for all eligible 

losses and the appropriate loss level 

percentage. No comments on this issue 

were received and no change in that 

provision was needed. 

One comment received requested 

expeditious implementation of the 

program. We have endeavored to 

provide for such implementation with a 

due concern for assuring a certain and 

efficient administration of the program 

benefits. 

One respondent commented on the 

use of plain language and consistency 

throughout the proposed rule and 

provided editorial recommendations to 

improve the clarity of the rule and better 

comply with Executive Order 

requirements. The respondent’s 

suggested recommendations are 

editorial and do not affect the 

substantive requirements of the 

proposed rule. Recommendations have 

been adopted where practical and 

incorporated throughout. Clarifications 

have been made where needed. 

Most of the comments received 

indicated that the loss calculation was 

not equitable to dairy operations that 

added cows to the milking herd to offset 

production losses during the eligible 

months following the 2004 hurricanes. 

These respondents were in support of 

an adjustment to the loss calculation 

that is reflective of cows added to the 

milking herd to compensate for loss 

production as a result of the hurricanes. 

After careful consideration of the 

recommendations proposed by the 

respondents, the Agency will provide a 

production credit to the dairy 

operation’s calculated losses for the 

addition of cows to the milking herd as 

a result of the hurricanes, provided 

adequate proof of purchase containing 

the date of purchase and number of 

head purchased is provided to CCC to 

substantiate the dairy operations claim 

of dairy cow purchases during the 

eligible months. In addition, dairy 

operations must report any decreases to 

the milking herd as a result of sale or 

death. The production credit will be 

calculated using the July 2004 per-cow 

production average and based on dairy 

cow increases or decreases to the 

milking herd and the corresponding 

days of ownership during each eligible 

month. 

Executive Order 12866 

This rule has been determined to be 

not significant under Executive Order 

12866 and therefore has not been 

reviewed by the Office of Management 

and Budget. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because CCC is not 

required by 5 U.S.C. 553 or any other 

law to publish a notice of proposed 

rulemaking with respect to the subject 

of this rule. 

Environmental Assessment 

The environmental impacts of this 

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 FSA’s regulations for 

compliance with NEPA, 7 CFR part 799. 

To the extent these authorities may 

apply, CCC has concluded that this rule 

is categorically excluded from further 

environmental review as evidenced by 

the completion of an environmental 

evaluation. No extraordinary 

circumstances or other unforeseeable 

factors exist which would require 

preparation of an environmental 

assessment or environmental impact 

statement. A copy of the environmental 

evaluation is available for inspection 

and review upon request. 

Executive Order 12988 

The rule has been reviewed in 

accordance with Executive Order 12998. 

This final rule preempts State laws to 

the extent such laws are inconsistent 

with it. This rule is not retroactive. 

Before judicial action may be brought 

concerning this rule, all administrative 

remedies set forth at 7 CFR parts 11 and 

780 must be exhausted. 

Executive Order 12372 

This program is not subject to 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. See the notice 

related to 7 CFR part 3015, subpart V, 

published at 48 FR 29115 (June 24, 

1983). 

Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) does not 

apply to this rule because CCC is not 

required by 5 U.S.C. 553 or any other 

law to publish a notice of proposed 

rulemaking for the subject of this rule. 

Further, this rule contains no unfunded 

mandates as defined in sections 202 and 

205 of UMRA. 

Paperwork Reduction Act of 1995 

In accordance with the Paperwork 

Reduction Act of 1995, the Office of 

Management and Budget (OMB) has 

approved the information collection 

required to support this program and 

assigned it OMB control number 0560. 

Copies of the information collection 

may be obtained from Danielle Cooke, 

phone: (202) 720–1919; e-mail: 

Danielle.Cooke@wdc.usda.gov. 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56115 

Government Paperwork Elimination 

Act 

CCC is committed to compliance with 

the Government Paperwork Elimination 

Act (GPEA) and the Freedom to E-File 

Act, which require Government 

agencies in general, and FSA 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 to be utilized by a 

person subject to this rule are not yet 

fully implemented in a way that would 

allow the public to conduct business 

with CCC electronically. Accordingly, at 

this time, all forms required to be 

submitted under this rule may be 

submitted to CCC by mail or FAX. 

List of Subjects in 7 CFR Part 1430 

Dairy, Disaster assistance, Reporting 

and recordkeeping requirements. 

■ For the reasons set out in the 

preamble, 7 CFR part 1430 is amended 

as follows: 

PART 1430—DAIRY PRODUCTS 

■ 1. The authority citation for part 1430 

is revised to read as follows: 

Authority: 7 U.S.C. 7981 and 7982; 15 

U.S.C. 714b and 714c; Pub. L. 108–324, 118 

Stat. 1220. 

■ 2. Add Subpart C to read as follows: 

Subpart C—2004 Dairy Disaster Assistance 

Payment Program 

Sec. 

1430.300 Applicability. 

1430.301 Administration. 

1430.302 Definitions. 

1430.303 Time and method of application. 

1430.304 Eligibility. 

1430.305 Proof of production. 

1430.306 Determination of losses incurred. 

1430.307 Rate of payment and limitations 

on funding. 

1430.308 Availability of funds. 

1430.309 Appeals. 

1430.310 Misrepresentation and scheme or 

device. 

1430.311 Death, incompetence, or 

disappearance. 

1430.312 Maintaining records. 

1430.313 Refunds; joint and several 

liability. 

1430.314 Miscellaneous provisions. 

1430.315 Termination of program. 

Subpart C—2004 Dairy Disaster 

Assistance Payment Program 

§ 1430.300 Applicability. 

(a) Subject to the availability of funds, 

this subpart sets forth the terms and 

conditions applicable to the 2004 Dairy 

Disaster Assistance Payment Program 

authorized by section 103 of Division B 

of Public Law 108–324. Benefits are 

available to eligible United States 

producers who have suffered dairy 

production losses and dairy spoilage 

losses in eligible counties as a result of 

a hurricane disaster in 2004. 

(b) To be eligible for this program, a 

producer must have been a milk 

producer in 2004 in a county declared 

a disaster by the President of the United 

States due to a 2004 hurricane. Only 

losses occurring in those counties are 

eligible for payment in this program. 

Producers in contiguous counties that 

were not designated by the President as 

a disaster county due to a hurricane in 

2004 are not eligible. 

(c) Subject to the availability of funds, 

benefits shall be provided by the 

Commodity Credit Corporation (CCC) to 

eligible dairy producers. Additional 

terms and conditions may be set forth in 

the payment application that must be 

executed by participants to receive a 

disaster assistance payment for dairy 

production losses and dairy spoilage 

losses. 

(d) To be eligible for payments, 

producers must comply with the 

provisions of, and their losses must 

meet the conditions of, this subpart and 

any other conditions imposed by CCC. 

§ 1430.301 Administration. 

(a) The 2004 Dairy Disaster Assistance 

Payment Program shall be administered 

under the general supervision of the 

Executive Vice President, CCC 

(Administrator, FSA), or a designee, and 

shall be carried out in the field by FSA 

State and county committees (State and 

county committees) and FSA 

employees. 

(b) State and county committees, and 

representatives and employees thereof, 

do not have the authority to modify or 

waive any of the provisions of the 

regulations of this subpart. 

(c) The State committee shall take any 

action required by the regulations of this 

subpart that has not been taken by the 

county committee. The State committee 

shall also: 

(1) Correct, or require the county 

committee to correct, any action taken 

by such county committee that is not in 

accordance with the regulations of this 

subpart; and 

(2) Require a county committee to 

withhold taking any action that is not in 

accordance with the regulations of this 

subpart. 

(d) No provision of delegation in this 

subpart to a State or county committee 

shall preclude the Executive Vice 

President, CCC, or a designee, from 

determining any question arising under 

the program or from reversing or 

modifying any determination made by 

the State or county committee. 

(e) The Deputy Administrator, Farm 

Programs, FSA, may authorize State and 

county committees to waive or modify 

deadlines in cases where lateness or 

failure to meet such requirements do not 

adversely affect the operation of the 

2004 Dairy Disaster Assistance Payment 

Program and does not violate statutory 

limitations on the program. 

(f) Data furnished by the applicants is 

used to determine eligibility for program 

benefits. Although participation in the 

2004 Dairy Disaster Assistance Payment 

Program is voluntary, program benefits 

are not to be provided unless the 

participant furnishes all requested data. 

§ 1430.302 Definitions. 

The definitions set forth in this 

section shall be applicable for all 

purposes of administering the 2004 

Dairy Disaster Assistance Payment 

Program established by this subpart. 

Application means the 2004 Dairy 

Disaster Assistance Payment Program 

Application. 

Application period means the time 

period established by the Deputy 

Administrator for producers to apply for 

program benefits. 

CCC means the Commodity Credit 

Corporation of the Department. 

County committee means the FSA 

county committee. 

County office means the FSA office 

responsible for administering FSA 

programs for farms located in a specific 

area in a state. 

Dairy operation means any person or 

group of persons who, as a single unit, 

as determined by CCC, produces and 

markets milk commercially from cows 

and whose production facilities are 

located in the United States. 

Department or USDA means the 

United States Department of 

Agriculture. 

Deputy Administrator means the 

Deputy Administrator for Farm 

Programs (DAFP), FSA, or a designee. 

Disaster county means a county 

declared a disaster by the President of 

the United States due to a hurricane in 

2004, and is only the county so 

declared, not a contiguous county. 

Farm Service Agency or FSA means 

the Farm Service Agency of the 

Department. 

Hundredweight or cwt. means 100 

pounds. 

Milk handler or cooperative means 

the marketing agency to, or through 

which, the producer commercially 

markets whole milk. 

Milk marketings means a marketing of 

milk for which there is a verifiable sales 

or delivery record of milk marketed for 

commercial use. In counting milk 

toward production amounts, dumped 

56116 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

milk will not be considered as marketed 

for commercial use. Such dumped milk 

shall be counted toward production but 

will be accounted for separately from 

milk that is marketed for normal 

commercial use as determined by the 

Deputy Administrator. All production 

in the months for which loss coverage 

is available will be counted in making 

determinations under this part, as 

determined by the Deputy 

Administrator, with care to avoid 

double counting, and with care to avoid 

a calculated loss that overstates the 

actual losses. 

Payment pounds means the pounds of 

milk production from a dairy operation 

for which the dairy producer is eligible 

to be paid under this subpart. 

Producer means any individual, group 

of individuals, partnership, corporation, 

estate, trust association, cooperative, or 

other business enterprise or other legal 

entity who is, or whose members are, a 

citizen of, or legal resident alien in the 

United States, and who directly or 

indirectly, as determined by the 

Secretary, shares in the risk of 

producing milk, and makes 

contributions (including land, labor, 

management, equipment, or capital) to 

the dairy farming operation of the 

individual or entity of the proceeds of 

this operation. 

Starting base production means actual 

commercial production marketed by the 

dairy operation during the month of July 

2004, or alternative period established 

by the Deputy Administrator. 

Verifiable production records means 

evidence that is used to substantiate the 

amount of production marketed, 

including any dumped production, and 

that can be verified by CCC through an 

independent source. 

§ 1430.303 Time and method of 

application. 

(a) Dairy producers may obtain an 

Application, in person, by mail, by 

telephone, or by facsimile from any 

county FSA office. In addition, 

applicants may download a copy of the 

Application at http:// 

www.sc.egov.usda.gov. 

(b) A request for benefits under this 

subpart must be submitted on a 

completed Application as defined in 

§ 1430.302. Applications and any other 

supporting documentation shall be 

submitted to the FSA county office 

serving the county where the dairy 

operation is located but, in any case, 

must be received by the FSA county 

office by the close of business on the 

date established by the Deputy 

Administrator. The closing date shall be 

no sooner than October 11, 2005. 

Applications not received by the close 

of business on such date will be 

disapproved as not having been timely 

filed and the dairy producer will not be 

eligible for benefits under this program. 

(c) All persons who share in the risk 

of a dairy operation’s total production 

must certify to the information on the 

Application before the Application is 

considered complete. 

(d) Each dairy producer requesting 

benefits under this subpart must certify 

to the accuracy and truthfulness of the 

information provided in their 

application and any supporting 

documentation. All information 

provided is subject to verification by 

CCC. Refusal to allow CCC or any other 

agency of the Department of Agriculture 

to verify any information provided will 

result in a denial of eligibility. 

Furnishing the information is voluntary; 

however, without it program benefits 

will not be approved. Providing a false 

certification to the Government may be 

punishable by imprisonment, fines and 

other penalties or sanctions. 

§ 1430.304 Eligibility. 

(a) Producers in the United States are 

eligible to receive hurricane-related 

dairy disaster benefits under this part 

only if they have suffered dairy 

production or dairy spoilage losses in 

counties declared a disaster by the 

President due to any hurricane in 2004. 

To be eligible to receive payments under 

this subpart, producers in a dairy 

operation must: 

(1) Have produced and commercially 

marketed milk in the United States and 

commercially marketed the milk 

produced during the 2004 calendar year; 

(2) Be a producer on a dairy farm 

operation physically located in a 

disaster county where production and 

milk spoilage losses were incurred as a 

result of 2004 hurricanes, and limiting 

their claims to losses occurring in those 

counties; 

(3) Provide proof of monthly milk 

production dumped and commercially 

marketed by all persons in the eligible 

dairy operation during the third quarter 

of the 2004 milk marketing year, or 

other period as determined by FSA, to 

determine the total pounds of eligible 

losses that will be used for payment; 

and 

(4) Apply for payments during the 

application period established by the 

Deputy Administrator. 

(b) Payments may be made for losses 

suffered by an otherwise eligible 

producer who is now deceased or is a 

dissolved entity if a representative who 

currently has authority to enter into a 

contract for the producer or the 

producer’s estate signs the application 

for payment. Proof of authority to sign 

for the deceased producer’s estate or a 

dissolved entity must be provided. If a 

producer is now a dissolved general 

partnership or joint venture, all 

members of the general partnership or 

joint venture at the time of dissolution 

or their duly-authorized representatives 

must sign the application for payment. 

(c) Producers associated with a dairy 

operation must submit a timely 

application and comply with terms and 

conditions of this subpart, instructions 

issued by CCC and instructions 

contained in the Application to be 

eligible for benefits under this subpart. 

(d) As a condition to receive benefits 

under this part, a producer must have 

been in compliance with the Highly 

Erodible Land Conservation and 

Wetland Conservation provisions of 7 

CFR part 12 for the 2004 calendar year, 

as applicable, and must not otherwise 

be barred from receiving benefits under 

7 CFR part 12 or any other law or 

regulation. 

(e) Payments are limited to losses in 

eligible counties in eligible months. 

(f) All payments under this part are 

subject to the availability of funds. 

§ 1430.305 Proof of production. 

(a) Evidence of production is required 

to establish the commercial marketing 

and production history of the dairy 

operation so that production and 

spoilage losses can be computed in 

accordance with § 1430.306. 

(b) A dairy producer must, based on 

the instructions issued by the Deputy 

Administrator, provide adequate proof 

of the dairy operation’s commercial 

production, including any dumped 

production and dairy cow purchases, for 

each month of the period July 2004 

through October 2004, and must 

specifically identify any dumped 

production for August through October 

2004. If a month other than July 2004 is 

used for base creation purposes records 

for that month must be provided. 

(1) A producer must certify and 

provide such proof as requested that 

losses for which compensation is 

claimed were hurricane-related and 

occurred in an eligible county in an 

eligible month. 

(2) Additional supporting 

documentation may be requested by 

FSA as necessary to verify production or 

spoilage losses and dairy herd increases 

or decreases to the satisfaction of FSA. 

(c) Adequate proof of production 

history of the dairy operation under 

paragraph (b) of this section must be 

based on milk marketing statements 

obtained from the dairy operation’s milk 

handler or marketing cooperative. 

Supporting documents may include, but 

are not limited to: tank records, milk 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56117 

handler records, daily milk marketings, 

copies of any payments received from 

other sources for production or spoilage 

losses, or any other documents available 

to confirm the production history and 

losses incurred by the dairy operation. 

(d) Adequate proof of dairy cow 

additions to the milking herd during the 

eligible months can include, but are not 

limited to sales receipts, invoices, State 

health certificates, or any other 

documents available to confirm the cow 

purchases. 

(e) All information provided to FSA 

by a producer is subject to verification, 

spot-check and audit by FSA. Also, FSA 

or another CCC representative may 

examine the dairy operation’s 

production or spoilage claims. 

(f) If adequate proof of commerciallymarketed production and supporting 

documentation is not presented to the 

satisfaction of CCC or FSA, the request 

for benefits will be rejected. In the case 

of a new producer that had no 

verifiable, actual, commercial 

production marketed by the dairy 

operation during the month of July 

2004, but which suffered eligible losses, 

an alternate base period may be 

established by the Deputy 

Administrator. 

§ 1430.306 Determination of losses 

incurred. 

(a) Eligible payable losses are 

calculated on a dairy operation by dairy 

operation basis and are limited to those 

occurring in August through October 

2004. Specifically, dairy production and 

spoilage losses incurred by producers 

under this subpart are determined on 

the established history of the dairy 

operation’s actual commercial 

production marketed from August 

through October 2004, and actual 

production dumped or otherwise not 

marketed from August through October 

2004, as provided by the dairy operation 

consistent with § 1430.305. Except as 

otherwise provided in these regulations, 

the starting base production, as defined 

in § 1430.302, is adjusted downward by 

a percentage determined by CCC to 

determine the base production for the 

months of August through October 

2004. These adjustments are made to 

account for the seasonal declines that 

can occur during those months. The 

base production for each of the months 

August through October 2004 is 

calculated by reducing the starting base 

production (July 2004, or alternate 

month approved by the Deputy 

Administrator for new producers) as 

follows: 

(1) August 2004 base production is 

the starting base production reduced by 

9 percent; 

(2) September 2004 base production is 

the starting base production reduced by 

15 percent; 

(3) October 2004 base production is 

the starting base production reduced by 

11 percent. 

(b) The eligible dairy production 

losses for a dairy operation for each of 

the months of August through October 

2004 will be: 

(1) The new base production for the 

dairy operation calculated under 

paragraph (a) of this section less, 

(2) For each such month for each 

dairy operation, the total of: 

(i) Actual commercially-marketed 

production (not counting dumped 

production counted under paragraph 

(b)(1)(ii) of this section); plus 

(ii) The pounds of milk production 

dumped (whether related to the 

hurricane or not), or otherwise not 

commercially marketed (whether related 

to the hurricane or not). For dumping 

losses to be eligible, they must, as with 

other program losses, be hurricane 

related, as described under paragraphs 

(c) and (d) of this section. 

(c) Actual production losses may be 

adjusted to the extent the reduction in 

production is not certified by the 

producer to be the result of the 

hurricane or is determined by FSA not 

to be hurricane-related. Actual 

production, as adjusted, that exceeds 

the adjusted base production will mean 

that the dairy operation incurred no 

eligible production losses for the 

corresponding month as a result of the 

hurricane disaster, and that the 

production level for that month does not 

qualify for a payment under this 

program. 

(d) Eligible dairy spoilage losses 

incurred by producers under this 

subpart for each of the months August 

through October 2004 will be 

determined based on actual milk 

produced in those months that was 

dumped on the farm as a result of the 

2004 hurricanes. Proper documentation 

of milk dumped on the farm as a result 

of spoilage due to a hurricane must be 

provided to CCC as provided in 

§ 1430.305. 

(e) Calculated production losses may 

be adjusted by FSA based on the 

monthly average of daily dairy cow 

additions or reductions to the milking 

herd during the period of July 1, 2004 

through October 31, 2004, to account for 

production adjustments as a result of 

dairy cow purchases, sales, or death 

losses. Production adjustments can be 

calculated using the average number of 

dairy cows in a dairy operation’s 

milking herd and the average 

production per cow during each 

applicable month. Per-cow production 

averages during the months of August 

through October will be determined 

based on the actual per-cow production 

average during the month of July 2004 

and reduced downward according to the 

seasonal decline percentages provided 

in paragraph (a) of this section, to 

determine the total production that may 

be credited back to the dairy operation’s 

total production losses. To qualify for 

the production adjustment: 

(1) Producers in eligible dairy 

operations must report any increases or 

decreases to the dairy cow milking herd 

during the period of July 1, 2004 

through October 31, 2004. 

(2) Adequate supporting 

documentation according to § 1430.305 

must be provided to the satisfaction of 

the COC to verify any claims of herd 

increases or decreases during the 

eligible period. 

(3) Any cows purchased during the 

eligible period that would increase the 

dairy cow milking herd must have been 

to offset production losses as a result of 

the 2004 hurricanes. 

(f) Eligible production and spoilage 

losses as otherwise determined under 

paragraphs (a) through (e) of this section 

are added together to determine total 

eligible losses incurred by the dairy 

operation subject to all other eligibility 

requirements as may be included in this 

part or elsewhere. 

(g) Payment on eligible dairy 

operation losses is calculated using 

whole pounds of milk. No double 

counting is permitted, and only one 

payment will be made for each pound 

of milk calculated as an eligible loss 

after the distribution of the operation’s 

eligible production loss among the 

producers of the dairy operation 

according to § 1420.307(b). Payments 

under this part will not be affected by 

any payments for dumped or spoiled 

milk that the dairy operation may have 

received from its milk handler, or 

marketing cooperative, or any other 

private party. 

(h) If a producer is eligible to receive 

payments under this part and benefits 

under any other program administered 

by the Secretary for the same losses, the 

producer must choose whether to 

receive the other program benefits or 

payments under this part, but shall not 

be eligible for both. The limitation on 

multiple benefits prohibits a producer 

from being compensated more than once 

for the same losses. If the other USDA 

program benefits are not available until 

after an application for benefits has been 

filed under this part, the producer may, 

to avoid this restriction on such other 

benefits, refund the total amount of the 

payment to the administrative FSA 

56118 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 

office from which the payment was 

received. 

§ 1430.307 Rate of payment and limitations 

on funding. 

(a) Subject to the availability of funds, 

the payment rate for eligible production 

and spoilage losses determined 

according to § 1430.306 is, depending 

on the State, the average monthly 

Mailbox milk price for the Florida, the 

Southeast, or the Appalachian States 

Marketing Orders as reported by the 

Agricultural Marketing Service during 

the months of August, September, and 

October of 2004. Maximum payment 

rates for eligible losses for dairy 

operations located in specific states are 

as follows: 

(1) Florida—$17.62 per 

hundredweight ($0.1762 per pound). 

(2) Alabama, Georgia, Louisiana, and 

Mississippi—$16.26 per hundredweight 

($0.1626 per pound). 

(3) North Carolina and South 

Carolina—$15.59 per hundredweight 

($0.1559 per pound). 

(b) Subject to the availability of funds, 

each eligible dairy operation’s payment 

is calculated by multiplying the 

applicable payment rate under 

paragraph (a) of this section by the 

operation’s total eligible losses. Where 

there are multiple producers in the 

dairy operation, individual producers’

payments are disbursed according to 

each producer’s share of the dairy 

operation’s production as specified in 

the Application. 

(c) If the total value of losses claimed 

under paragraph (b) of this section 

exceeds the $10 million available for the 

2004 Dairy Disaster Assistance Payment 

Program, less any reserve that may be 

created under paragraph (e) of this 

section, total eligible losses of 

individual dairy operations that, as 

calculated as an overall percentage for 

the full three month period, August–

October 2004 (not a monthly average for 

any one month), are greater than 20 

percent of the total base production for 

those three months will be paid at the 

maximum rate under paragraph (a) of 

this section to the extent available 

funding allows. A loss of over 20 

percent in only one or two of the 

eligible months does not itself qualify 

for the maximum per-pound payment. 

Total eligible losses for a producer, as 

calculated under § 1430.306, of less than 

or equal to 20 percent during the 

eligibility period of August to October 

2004 will be paid at a rate determined 

by dividing the eligible losses of less 

than 20 percent by the funds remaining 

after making payments for all eligible 

losses above the 20 percent threshold. 

(d) In no event shall the payment 

exceed the value determined by 

multiplying the producer’s total eligible 

loss times the average price received for 

commercial milk production in their 

area as defined in paragraph (a) of this 

section. 

(e) A reserve may be created to handle 

claims that extend beyond the 

conclusion of the application period, 

but claims shall not be payable once the 

available funding is expended. 

§ 1430.308 Availability of funds. 

The total available program funds 

shall be $10 million as provided by 

section 103 of Division B of Public Law 

108–324. 

§ 1430.309 Appeals. 

Any producer who is dissatisfied with 

a determination made pursuant to this 

subpart may request reconsideration or 

appeal of such determination in 

accordance with the appeal regulations 

set forth at 7 CFR parts 11 and 780. 

Appeals of determinations of 

ineligibility or payment amounts are 

subject to the limitations in §§ 1430.307 

and 1430.308. 

§ 1430.310 Misrepresentation and scheme 

or device. 

(a) In addition to other penalties, 

sanctions or remedies as may apply, a 

dairy producer shall be ineligible to 

receive assistance under this program if 

the producer is determined by FSA or 

CCC to have: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of this 

program; 

(2) Made any fraudulent 

representation; or 

(3) Misrepresented any fact affecting a 

program determination. 

(b) Any funds disbursed pursuant to 

this part to any person or operation 

engaged in a misrepresentation, scheme, 

or device, shall be refunded with 

interest together with such other sums 

as may become due. Any dairy 

operation or person engaged in acts 

prohibited by this section and any dairy 

operation or person receiving payment 

under this subpart shall be jointly and 

severally liable with other persons or 

operations involved in such claim for 

benefits for any refund due under this 

section and for related charges. The 

remedies provided in this subpart shall 

be in addition to other civil, criminal, or 

administrative remedies that may apply. 

§ 1430.311 Death, incompetence, or 

disappearance. 

In the case of death, incompetency, 

disappearance, or dissolution of a 

person that is eligible to receive benefits 

in accordance with this subpart, such 

alternate person or persons specified in 

7 CFR part 707 may receive such 

benefits, as determined appropriate by 

FSA. 

§ 1430.312 Maintaining records. 

Persons applying for benefits under 

this program must maintain records and 

accounts to document all eligibility 

requirements specified herein. Such 

records and accounts must be retained 

for 3 years after the date of payment to 

the dairy operations under this program. 

Destruction of the records after such 

date shall be at the risk of the party 

undertaking the destruction. 

§ 1430.313 Refunds; joint and several 

liability. 

(a) Excess payments, payments 

provided as the result of erroneous 

information provided by any person, or 

payments resulting from a failure to 

comply with any requirement or 

condition for payment under the 

application or this subpart, must be 

refunded to CCC. 

(b) A refund required under this 

section shall be due with interest 

determined in accordance with 

paragraph (d) of this section and late 

payment charges as provided in 7 CFR 

part 1403. 

(c) Persons signing a dairy operation’s 

application as having an interest in the 

operation shall be jointly and severally 

liable for any refund and related charges 

found to be due under this section. 

(d) Interest shall be applicable to any 

refunds required in accordance with 7 

CFR parts 792 and 1403. Such interest 

shall be charged at the rate the United 

States Department of the Treasury 

charges CCC for funds, and shall accrue 

from the date FSA or CCC made the 

erroneous payment to the date of 

repayment. 

(e) FSA may waive the accrual of 

interest if it determines that the cause of 

the erroneous determination was not 

due to any action of the person, or was 

beyond the control of the person 

committing the violation. Any waiver is 

at the discretion of FSA alone. 

§ 1430.314 Miscellaneous provisions. 

(a) Offset. CCC may offset or withhold 

any amount due CCC under this subpart 

in accordance with 7 CFR part 1403. 

(b) Claims. Claims or debts are settled 

in accordance with 7 CFR part 1403. 

(c) Other interests. Payments or any 

portion thereof due under this subpart 

shall be made without regard to 

questions of title under State law and 

without regard to any claim or lien 

against the livestock, or proceeds 

thereof, in favor of the owner or any 

other creditor except agencies and 

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56119 

instrumentalities of the U.S. 

Government. 

(d) Assignments. Any producer 

entitled to any payment under this part 

may assign any payments in accordance 

with the provisions of 7 CFR part 1404. 

§ 1430.315 Termination of program. 

This program ends after payment has 

been made to those applicants certified 

as eligible pursuant to the application 

period established in § 1430.304. All 

eligibility determinations shall be final 

except as otherwise determined by the 

Deputy Administrator. 

Signed at Washington, DC, on September 

13, 2005. 

James R. Little, 

Executive Vice President, Commodity Credit 

Corporation. 

[FR Doc. 05–19127 Filed 9–23–05; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF THE INTERIOR 

Minerals Management Service 

30 CFR Parts 250 and 256 

RIN 1010–AD16 

Oil, Gas, and Sulphur Operations and 

Leasing in the Outer Continental Shelf 

(OCS)—Cost Recovery 

AGENCY: Minerals Management Service 

(MMS), Interior. 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: MMS is delaying until 

January 1, 2006, the effective date of a 

rule that will implement fees to offset 

MMS’s costs of providing certain 

services related to its mineral programs. 

This delay is necessary because of 

damage caused in the New Orleans area 

by Hurricane Katrina and subsequent 

flooding. The delay will provide relief 

to the government and the oil and gas 

industry as they recover from this 

disaster. 

DATES: The effective date of the rule 

amending 30 CFR Parts 250 and 256 

published at 70 FR 49871, August 25, 

2005 is delayed until January 1, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Angela Mazzullo, Offshore Minerals 

Management (OMM) Budget Office at 

(703) 787–1691. 

SUPPLEMENTARY INFORMATION: The rule 

published August 25, 2005, requires 

MMS to develop additional procedures 

that MMS will provide to the oil and gas 

industry in the form of a Notice to 

Lessees. The primary office responsible 

for developing those procedures, the 

MMS Gulf of Mexico Regional Office in 

New Orleans, Louisiana, has been 

closed since Hurricane Katrina and the 

flooding that followed that disaster. 

Moreover, many of the lessees and 

operators subject to the rule are 

similarly engaged in the restoration of 

normal operations following Hurricane 

Katrina. Lessees and operators will be 

making changes in their own procedures 

to comply with the rule. Lessees and 

operators whose operations have been 

interrupted as a result of the hurricane 

may not be able to make these changes 

until normal operations resume. 

Accordingly, the Department of the 

Interior is postponing the effective date 

of the final rule until January 1, 2006. 

Dated: September 20, 2005. 

Rebecca W. Watson, 

Assistant Secretary—Land and Minerals 

Management. 

[FR Doc. 05–19223 Filed 9–23–05; 8:45 am] 

BILLING CODE 4310–MR–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Parts 1, 2, 3, 5, and 10 

[Docket No.: 2005–P–053] 

RIN 0651–AB85 

Provisions for Claiming the Benefit of 

a Provisional Application With a NonEnglish Specification and Other 

Miscellaneous Matters 

AGENCY: United States Patent and 

Trademark Office, Commerce. 

ACTION: Final rule. 

SUMMARY: The United States Patent and 

Trademark Office (Office) is amending 

the rules of practice to require that: A 

copy of the English translation of a 

foreign-language provisional application 

be filed in the provisional application if 

a nonprovisional application claims the 

benefit of the provisional application; a 

copy of documentary evidence 

supporting a claim of ownership be 

recorded in the Office’s assignment 

records when an assignee takes action in 

a patent matter; and separate copies of 

a document be submitted to the Office 

for recording in the Office’s assignment 

records, each accompanied by a cover 

sheet, if the document to be recorded 

includes an interest in, or a transaction 

involving, both patents and trademarks. 

DATES: Effective November 25, 2005. 

Applicability Date: The changes apply 

to any paper, application or 

reexamination proceeding filed in the 

Office on or after November 25, 2005. 

Further, if a nonprovisional patent 

application claims the benefit of the 

filing date of a non-English provisional 

application, a translation of the 

provisional application and a statement 

that the translation was accurate 

required by 37 CFR 1.78(a)(5)(iv) will 

not be required to be filed in the 

provisional application, if the 

translation and statement were filed in 

the nonprovisional application before 

November 25, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Karin Ferriter (571–272–7744), Senior 

Legal Advisor, Office of Patent Legal 

Administration, Office of the Deputy 

Commissioner for Patent Examination 

Policy, or Robert J. Spar (571–272–

7700), Director of the Office of Patent 

Legal Administration, Office of the 

Deputy Commissioner for Patent 

Examination Policy, directly by phone, 

or by facsimile to 571–273–7744, or by 

mail addressed to: Mail Stop 

Comments—Patents, Commissioner for 

Patents, P.O. Box 1450, Alexandria, VA 

22313–1450. 

SUPPLEMENTARY INFORMATION: This final 

rule revises the rules of practice in title 

37 of the Code of Federal Regulations 

(CFR) pertaining to records related to 

signature, availability of patent 

application files, power of attorney, 

provisional applications, and 

assignments. 

Discussion of Specific Rules 

Section 1.4: Section 1.4(d)(2) is 

amended to delete ‘‘with a signature in 

permanent dark ink or its equivalent,’’

because dark ink applies to handwritten 

signatures, not S-signatures. Section 

1.4(d)(2)(ii) is amended to move the 

word ‘‘only’’ in the second sentence 

thereof from immediately preceding the 

word ‘‘be’’ to immediately following the 

word ‘‘used’’ and to change ‘‘registered 

practitioner’’ to ‘‘patent practitioner 

(§ 1.32(a)(1)).’’ The term ‘‘patent 

practitioner’’ is defined in § 1.32(a). 

Section 1.11: Section 1.11(a) is 

amended for clarity and to reflect the 

policy regarding availability to the 

public of papers in the files of 

applications that have been published. 

For example, § 1.11(a) is amended to 

remove ‘‘abandoned’’ before ‘‘published 

application.’’ Published applications are 

not physically available to the public to 

copy and inspect if the file is 

maintained in a paper file wrapper. If a 

published application is not maintained 

in paper, but is instead maintained in 

the image file wrapper (IFW) system, the 

application is made available for public 

inspection through the Patent 

Application Information Retrieval 

(PAIR) system pursuant to 

§ 1.14(a)(1)(iii) and 1.14(b). Since most