Sorghum Promotion, Research, and Information Order, 25398-25417 [E8-9327]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 73, Number 88 (Tuesday, May 6, 2008)]
[Rules and Regulations]
[Pages 25398-25417]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-9327]



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Part IV





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 1221



Sorghum Promotion, Research, and Information Order; Final Rule

Federal Register / Vol. 73, No. 88 / Tuesday, May 6, 2008 / Rules and 
Regulations

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1221

[Docket No. AMS-LS-07-0056, LS-07-02]


Sorghum Promotion, Research, and Information Order

AGENCY: Agricultural Marketing Service (AMS), USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes an industry-funded promotion, research, 
and information program for sorghum, which includes but is not limited 
to, grain sorghum, sorghum forage, sorghum hay, sorghum haylage, 
sorghum billets, and sorghum silage. For the purpose of clarity, the 
term sorghum means all the above mentioned types of sorghum unless 
specifically identified otherwise. The Sorghum Promotion, Research, and 
Information Order (Order) is implemented under the authority of the 
Commodity Promotion, Research, and Information Act of 1996 (Act). The 
Order will establish a national Sorghum Promotion, Research, and 
Information Board (Board) comprised initially of 13 sorghum producers. 
Producers and importers will pay assessments based on the value of the 
sorghum they produce or import. A referendum will be conducted 3 years 
after assessments begin to determine if sorghum producers and importers 
favor the program.

DATES: Effective May 7, 2008. Collection of assessments and appropriate 
reporting will begin on July 1, 2008.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Payne, Chief, Marketing 
Programs Branch; Telephone: (202) 720-1115; Fax: (202) 720-1125, or E-
mail Kenneth.Payne@usda.gov.

SUPPLEMENTARY INFORMATION: This Order is issued pursuant to the Act of 
1996 (7 U.S.C. 7411-7425) enacted April 4, 1996, hereafter referred to 
as the Act. A proposed Order was published November 23, 2007 [72 FR 
65842].

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
Section 524 of the Act provides that the Act shall not affect or 
preempt any other Federal or State law authorizing promotion or 
research relating to an agricultural commodity.
    Under Section 519 of the Act, a person subject to the Order may 
file a petition with the Secretary of Agriculture (Secretary) stating 
that the Order, any provision of the Order, or any obligation imposed 
in connection with the Order is not established in accordance with the 
law, and may request a modification of the Order or an exemption from 
the Order. Any petition filed challenging the Order, any provision of 
the Order, or any obligation imposed in connection with the Order, 
shall be filed within 2 years after the effective date of the Order, 
provision, or obligation subject to challenge in the petition. The 
petitioner will have the opportunity for a hearing on the petition. 
Thereafter, the Secretary will issue a ruling on the petition. The Act 
provides that the district court of the U.S. for any district in which 
the petitioner resides or conducts business shall have the jurisdiction 
to review a final ruling on the petition if the petitioner files a 
complaint for that purpose not later than 20 days after the date of the 
entry of the Secretary's final ruling.

Executive Order 13132

    This final rule has been reviewed under Executive Order 13132, 
Federalism. This Order directs agencies to construe, in regulations and 
otherwise, a Federal statute to preempt State law only when the statute 
contains an express preemption provision. Section 524 of the Act 
provides that the Act shall not affect or preempt any other Federal or 
State law authorizing promotion or research relating to an agricultural 
commodity.
    Six States currently have State-legislated sorghum research and 
promotion programs. In accordance with the Act, this final rule will 
not preempt any of these State-legislated programs. Further, section 
1221.112(j) of the final Order provides for an annual allocation to 
State programs based on the State's proportional contribution of total 
assessments collected by the national sorghum checkoff program.
    In 2005 and 2006, representatives of the six State-legislated 
sorghum promotion programs were among other sorghum industry 
representatives who met with AMS representatives to discuss the 
possibility of implementing a national sorghum checkoff program. State 
program representatives participated in the development of the 
provisions of the proposed Order during these meetings and through 
direct communication with the National Sorghum Producers (NSP) during 
the drafting of its proposal.
    Not only were the States informed throughout the development of the 
national sorghum checkoff program, they were instrumental in the 
sorghum industry's decision to institute a national sorghum checkoff 
program. In addition to receiving support from NSP and the U.S. Grains 
Council, an organization that is dedicated to expanding export 
opportunities and markets for sorghum and sorghum products, industry 
and producer organizations from four of the largest grain sorghum 
production States: Kansas, Nebraska, Texas, and Oklahoma expressed 
their support for the proposed Order. New Mexico, a producer of grain 
sorghum and sorghum silage, also expressed support. Within these 
States, the following organizations indicated their interest in 
establishing the program: The Texas Grain Sorghum Board; the Texas 
Grain Sorghum Association; the Kansas Grain Sorghum Producers 
Association; the Kansas Grain Sorghum Commission; the Nebraska Grain 
Sorghum Producers Association; the Oklahoma Grain Sorghum Association; 
and the New Mexico Grain Sorghum Association.

Executive Order 12866

    This final rule has been determined not significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget (OMB).

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601-612), USDA is required to examine the impact of this rule on small 
entities. The purpose of the RFA is to fit regulatory actions to the 
scale of businesses subject to such actions so that small businesses 
will not be disproportionately burdened.
    The Act authorizes generic programs of promotion, research, and 
information for agricultural commodities. Congress found that it is in 
the national public interest and vital to the welfare of the 
agricultural economy of the United States to maintain and expand 
existing markets and develop new markets and uses for agricultural 
commodities through industry-funded, Government-supervised, commodity 
promotion programs.
    The Order is intended to develop and finance, through assessments, 
an effective and coordinated program of promotion, research, and 
information to maintain and expand the markets for sorghum. While the 
Order will impose certain reporting and recordkeeping requirements on 
persons subject to the Order, the information required under the Order 
can generally be compiled from records currently maintained.
    Under the Order, first handlers will remit assessments collected 
from

[[Page 25399]]

producers to the Board. First handlers will also be required to keep 
records and provide information to the Board that it deems necessary. 
Currently, first handlers already complete and maintain the same or 
similar information for existing State sorghum and soybean programs, as 
well as for the Soybean Checkoff Program (7 CFR part 1220). Reporting 
forms will require the minimum information necessary to fulfill the 
intent of the Act. Such records and reports will be retained for 2 
years beyond the fiscal year of their applicability. First handlers 
will also be required to make available, to the Secretary, their books 
and records in order to determine compliance with the Order.
    In addition to paying assessments, producers and importers will 
have a reporting and recordkeeping burden. This burden relates to 
producers and importers who will seek nomination to serve on the Board, 
request an organic exemption, request a refund of assessments paid, or 
vote in a nation-wide referendum. The Order requires producers and 
importers to keep records and to provide information to the Board or 
the Secretary when requested and to keep records to qualify for a 
refund. However, it is not anticipated that producers will be required 
to regularly submit assessment and other related information to the 
Board. Information may be obtained through an audit of producers' 
records to confirm information provided by first handlers or as part of 
the Board's compliance program.
    When seeking nominations to serve on the Board, producers will be 
required to complete two forms that would be submitted to the 
Secretary.
    Any producer paying assessments may request a refund of assessments 
paid by submitting an application to the Board. Refunds will be made 
only if the program is not approved in referendum.
    With regard to imports of sorghum, U.S. Customs and Border 
Protection (Customs) will collect and remit assessments from importers 
to the Board. Customs will also provide information to the Board 
regarding the value and volume of imported sorghum, and therefore it is 
not anticipated that importers will have any regular reporting burden. 
The Order requires importers to keep records and to provide information 
to the Board or the Secretary, when requested, and to keep records to 
qualify for a refund. Information may be obtained through an audit of 
importers' records to confirm information provided by Customs or as 
part of the Board's compliance program.
    Importers will have similar reporting and recordkeeping 
requirements as producers concerning nominations to serve on the Board, 
organic exemptions, refunds of assessments paid, or referendums.
    The Small Business Administration (SBA) [13 CFR 121.201] defines 
small agricultural service businesses as those whose annual receipts 
are less than $6.5 million. According to the National Agricultural 
Statistics Service (NASS) 2002 Census of Agriculture, there are 22 
grain sorghum producing States and approximately 3,000 wholesale grain 
merchants who will be considered first handlers under the Order, in 
these 22 States. By calculating the average values of product sold by 
grain merchants in each of the 22 grain sorghum producing States, one 
can determine that 16 States have wholesale grain industries where, on 
average, the wholesalers each sold in excess of $6.5 million per year. 
This gives a rough approximation that as many as 73 percent of 
wholesale grain elevators in grain sorghum producing States may have 
annual sales in excess of $6.5 million and therefore are determined not 
to be small businesses.
    Based upon data collected from State sorghum boards, NSP estimates 
that approximately 1,150 first handlers of grain sorghum will be 
affected. This number represents the number of wholesale grain 
merchants who buy grain sorghum of the 3,000 wholesale grain merchants 
approximated. Although State promotion, research, and information 
programs do not currently exist for sorghum forage, sorghum hay, 
sorghum haylage, sorghum billets, or sorghum silage, NSP estimates that 
approximately 700 first handlers of these products will be affected. 
This was determined through discussions with State sorghum promotions 
program representatives and State organizations representing sorghum 
producers. We assume that some of these 700 first handlers will be 
small businesses.
    Under SBA criteria, importers of sorghum are considered 
agricultural service businesses. The Order defines an importer as a 
person who imports more than 1,000 bushels of grain sorghum, or 5,000 
tons of sorghum forage, sorghum hay, sorghum haylage, sorghum billets, 
or sorghum silage during a calendar year.
    At present, a relatively small amount of grain sorghum is imported 
into the United States, and the exact number of sorghum importers who 
will be affected by the proposed Order is not known. It is believed 
that most grain sorghum imports are related to sorghum seed breeding 
activities at the present time. For the purpose of this RFA, we 
therefore will assume that some importers are small businesses.
    For 2005, United States International Trade Commission (USITC) 
database reports indicate that there were 24,549 bushels of grain 
sorghum imported, valued at $96,800. Based upon 2005 NASS data, this 
total would equal approximately 0.01 percent of the value of the 
domestic grain sorghum crop. In 2006, USITC database reports indicate 
that there were 2,547 bushels of grain sorghum imported, valued at 
$46,000. Using 2006 NASS data, this would again equal approximately 
0.01 percent of the value of the domestic grain sorghum crop. Using 
data from USITC reports for January--August 2007, the amount of grain 
sorghum imported is currently 75,497 bushels, valued at $374,000. Based 
upon NASS projections for the upcoming marketing year, grain sorghum 
imports would equal approximately 0.02 percent of the value of the 2007 
domestic grain sorghum crop.
    The SBA defines small agricultural producers as those having annual 
receipts of not more than $750,000 annually. According to the NASS 2002 
Census of Agriculture, the average grain sorghum farm size is 204 
acres. The USDA Economic Research Service's (ERS) Feed Grains Data Base 
Yearbook Tables indicate that for 2002 the weighted average farm price 
for grain sorghum was $2.32 per bushel and that, on average, 50.6 
bushels per acre were produced. Based on these figures, the average 
value of grain sorghum produced would be $23,948. Accordingly, most 
grain sorghum producers subject to this Order are determined to be 
small businesses.
    Sufficient data are not available to make similar calculations for 
the burden of assessments on sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, sorghum silage and sorghum seed producers. 
For the purpose of this RFA, we will assume that these producers are 
small businesses.
    ERS' report Feed Outlook, August 14, 2007, forecasted grain sorghum 
production of 475 million bushels in 2007, making it the largest 
production year since 2001. If this level of production were realized, 
the proposed Board would collect $9.4 million in assessments on grain 
sorghum. While ERS does not provide a production forecast for sorghum 
silage, NASS reports that 4,642,000 tons of sorghum silage was produced 
in 2006. NASS does not estimate the value of sorghum silage, but at $18 
per ton, an estimate provided by NSP, the Board would collect 
approximately $2.9 million from

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sorghum silage. Were production and prices to remain at these record 
levels, the Board could collect approximately $12.3 million from 
domestic production of grain and silage sorghum and $2,244 from 
imported grain sorghum.
    An estimate of the grain sorghum assessments that would have been 
paid by producers in 2002 can be calculated by multiplying the average 
farm size (204 acres) by the average production (50.6 bushels per acre) 
by the price received ($2.32 per bushel) by the proposed grain sorghum 
assessment rate of 6 tenths of one percent of the value of the grain 
sorghum (0.006). The burden to each farm can be estimated to be 
approximately $144 for 2002. In this example, the year 2002 was 
selected because it is the most recent NASS Census of Agriculture 
reporting farm size.
    Sufficient data are not available to make a more accurate forecast 
of assessment collections on sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, and sorghum silage production. In addition to 
sorghum first handlers, importers, and producers, there are other 
entities affected by the Order. State, regional and national 
organizations representing sorghum producers and importers will have a 
role in the Order. There will be some burden on producer organizations 
that want to participate in the program by becoming certified to make 
nominations to the Board. USDA estimates that two organizations within 
each State will request certification.
    Shortly after the effective date of this Order, USDA will publish a 
notice in the Federal Register announcing that it will accept 
applications for certification of organizations to participate in the 
nomination of Board members pursuant to criteria in section 1221.107. 
Certified organizations will be required to re-submit applications for 
certification periodically. It is anticipated that this will occur 
every 5 years.
    Additionally, there will be a burden on State sorghum producer 
organizations requesting qualification by the Secretary to receive 
funding from the Board pursuant to section 1221.112(j). Only one 
organization within each State will be qualified by the Secretary to 
receive funding from the Board, and preference will be given to 
existing State legislated sorghum promotion organizations. 
Organizations will be required to submit an application for 
qualification to the Secretary pursuant to section 1221.128. It is 
estimated that one organization will be qualified per State although it 
is not required that each State have a qualified organization. 
Qualified organizations receiving funding through the Order will be 
required to re-submit applications for qualification periodically. It 
is anticipated that this will occur every 5 years.
    While the exact number of certified and qualified organizations is 
not known, nonetheless their membership, to a great extent, are 
producers who are largely small entities, and, when applicable, 
importers who we assume some of which are small entities.
    The Act provides authority to tailor a program according to the 
individual needs of an industry. Section 514 of the Act provides for 
orders applicable to producers, first handlers, and other persons in 
the marketing chain as appropriate. Provision is made for permissive 
terms in an order in Section 516 of the Act and authorizes an order to 
provide for coverage of research, promotion, and information activities 
to expand, improve, or make more efficient the marketing or use of an 
agricultural commodity in both domestic and foreign markets; provision 
for reserve funds; and provision for credits for generic and branded 
activities. In addition, Section 518 of the Act provides for a 
referendum to ascertain approval of an order to be conducted either 
prior to its going into effect or within 3 years after assessments 
first begin under the order. An order also may provide for its approval 
in a referendum to be based upon (1) a majority of those persons 
voting; (2) persons voting for approval who represent a majority of the 
volume of the agricultural commodity; or (3) a majority of those 
persons voting for approval who also represent a majority of the volume 
of the agricultural commodity. Section 515 of the Act provides for 
establishment of a board from among producers, first handlers, and 
others in the marketing chain as appropriate.
    This Order includes provisions for a delayed referendum. Approval 
will be based upon the majority of those persons voting for approval 
who were engaged in the production or importation of sorghum during the 
representative period established by the Secretary.
    We have not identified any relevant Federal rules that are 
currently in effect that duplicate, overlap, or conflict with this 
rule.

Paperwork Reduction Act

    In accordance with OMB regulation (5 CFR part 1320) that implements 
the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) (PRA), AMS 
has submitted to OMB a new information collection that has been 
assigned OMB control number 0581-0246.
    Abstract: The information collection requirements in the request 
are essential to carry out the intent of the Act.
    Under the Order, first handlers will be required to collect 
assessments from producers, file reports with, and submit assessments 
to the Board. While the Order will impose certain recordkeeping 
requirements on first handlers, information required under the Order 
can be compiled from records currently maintained. Such records must be 
retained for at least 2 years beyond the marketing year of their 
applicability. Each first handler will be responsible for the 
collection of assessments and remittance of the assessments to the 
Board. It is anticipated that the bulk of assessments will be submitted 
to the Board by first handlers who purchase sorghum. A producer will be 
considered a first handler when that person markets sorghum of their 
own production directly to a consumer.
    The Order's provisions have been carefully reviewed, and every 
effort has been made to minimize any unnecessary recordkeeping costs or 
requirements.
    The forms on which information is to be collected require the 
minimum information necessary to effectively carry out the requirements 
of the Order. Such information can be supplied without data processing 
equipment or outside technical expertise. In addition, there are no 
additional training requirements for individuals filling out reports 
and remitting assessments to the Board. The forms are designed to be 
simple and easy to understand and place as small a burden as possible 
on the person required to file the information.
    The timing and frequency of collecting information are intended to 
meet the needs of the industry, while minimizing the amount of work 
necessary to fill out the required reports. In addition, the 
information to be included on these forms is not available from other 
sources because such information relates specifically to individual 
producers and first handlers who are subject to the provisions of the 
Act. Therefore, there is no practical method for collecting the 
required information without the use of these forms.
    For the purpose of estimating the cost of reporting and 
recordkeeping, $18.55 is used, which is the mean hourly earnings of 
first line supervisors and managers of farming, fishing, and forestry 
workers as obtained from the U.S. Department of Labor Bureau of Labor 
Statistics National Compensation Survey of Occupational Wages.

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    Information collection requirements include:
    (1) Background Information Form (OMB Form No. 0505-0001).
    Estimate of Burden: Public reporting for this collection of 
information is estimated to average 0.5 hours per response for each 
producer or importer nominated to serve on the Board.
    Respondents: Producers and importers.
    Estimated Number of Respondents: (26 for initial nominations to the 
Board, 8 in the second year, 10 in the third year, and 8 in the fourth 
year, sequencing 8, 10 and 8 annually, thereafter).
    Estimated Number of Responses per Respondent: 0.33.
    Estimated Total Annual Burden on Respondents: 4.29 hours for the 
initial nominations to the Sorghum Board and sequencing 1.3, 1.6, and 
1.3 annually thereafter.
    Total Cost: (Number of respondents x responses per respondent x 
$18.55) $79.58 initial, and sequencing $24.12, $29.68, and $24.12 
annually thereafter.
    (2) Requirement to Maintain Records Sufficient to Verify Reports 
Submitted Under the Order.
    Estimate of Burden: Public recordkeeping burden for keeping this 
information is estimated to average 0.1 hour per record keeper 
maintaining such records.
    Recordkeepers: Producers, importers, and first handlers.
    Estimated Number of Recordkeepers: 35,050.
    Estimated Total Recordkeeping Hours: (Number of recordkeepers x 0.1 
hours) 3,502 hours.
    Total Cost: (Number of record keepers x 0.1 hour per record keeper 
x $18.55) $64,962.
    (3) Remittance Form by Each First Handler.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.25 hour per first handler.
    Respondents: First handlers.
    Estimated Number of Respondents: (1,150 first handlers of grain 
plus 700 first handlers of silage and hay) 1,850.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: (Number of first 
handlers x total number of reports x 0.25 hour per report) 5,550 hours.
    Total Cost: (5,550 hours x $18.55) $102,952.50.
    (4) Application for Refund Form.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.167 hour per response.
    Respondents: Producers and importers.
    Estimated Number of Respondents: (25 percent of 33,200 total 
producers) 8,300.
    Estimated Number of Responses per Respondent: 6.
    Estimated Total Annual Burden: (8,300 producers x 6 reports per 
year x 0.167 hour per report) 8,317 hours.
    Total Cost: (8,317 hours x $18.55) $154,280.
    (5) Application for Certification of Organizations.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hour per response.
    Respondents: National, State, or regional sorghum associations or 
organizations.
    Estimated Number of Respondents: (Two organizations certified in 
each of 22 sorghum producing States) 44.
    Estimated Number of Responses per Respondent: (Estimating 
recertification every 5 years) 0.2.
    Estimated Total Annual Burden: (44 organizations x 0.2 responses x 
0.5 hour per response) 4.4 hours.
    Total Cost: (4.4 hours x $18.55) $81.62.
    (6) Application for Qualification of Organizations.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hour per response.
    Respondents: State associations or organizations.
    Estimated Number of Respondents: (1 organization certified in each 
of 22 sorghum producing States) 22.
    Estimated Number of Responses per Respondent: (Estimating 
requalification every 5 years) 0.2.
    Estimated Total Annual Burden: (22 organizations x 0.2 responses x 
0.5 hour per response) 2.2 hours.
    Total Cost: $40.81.
    (7) Nominations for Appointments to the Sorghum Board Form.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hour per response.
    Respondents: National, State, or regional sorghum associations and 
organizations.
    Estimated Number of Respondents: (Certified organizations) 22.
    Estimated Number of Responses per Respondent: one per year.
    Estimated Total Annual Burden: (22 organizations x 1 response x 0.5 
hour per response) 11 hours.
    Total Cost: (11 hours x $18.55) $204.
    (8) Organic Exemption Form.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.5 hour per exemption form.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: (Annual exemption 
application required) 1.0.
    Estimated Total Annual Burden on Respondents: 5.0 hour.
    Total Cost: (5 hours x $18.55) $92.75.
    (9) Referendum Ballot.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 0.1 hour per referendum ballot.
    Respondents: Producers and importers.
    Estimated Number of Respondents: 8,300.
    Estimated Number of Responses per Respondent: (Estimating 
referendums every 5 years) 0.2.
    Estimated Total Annual Burden on Respondents: 166 hours.
    Total Cost: (166 hours x $18.55) $3,079.30.
    In the proposed rule published November 23, 2007, [72 FR 65842] 
comments were invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of functions of the 
proposed Order and the USDA's oversight of the program, including 
whether the information will have practical utility; (b) the accuracy 
of USDA's estimate of the burden of the proposed collection of 
information, including the validity of the methodology and assumption 
used; (c) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (d) ways to minimize the burden of the 
collection of information on those who are to respond, including the 
use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.
    No separate comments were received regarding the information 
collection section. However, one comment was received concerning 
recordkeeping and is discussed in the comment section.

Background

    NSP submitted a draft Order to USDA on December 28, 2006, along 
with letters of support from nine industry organizations. These letters 
represented producer organizations from five sorghum producing States, 
NSP, and the U.S. Grains Council.
    According to NSP, a national promotion, sorghum checkoff program 
will allow the industry to address a number of production and marketing 
problems it currently faces. Three main

[[Page 25402]]

problems currently affecting sorghum producers are as follows: Lack of 
yield improvement and technology; aggressive market competition; and 
lagging ethanol research. The sorghum industry has declined in recent 
years in both production and acreage.
    State grain sorghum promotion, research, and information programs 
currently exist in Kansas, Texas, Nebraska, Oklahoma, Louisiana, and 
Arkansas. These promotion, research, and information programs are based 
on volumetric assessments, so as volumes of grain sorghum change, so do 
the promotion, research, and information assessments. This variability 
leads to sporadic research funding. Also, State programs cannot 
generate a sufficient scale of funding to effectuate large coordinated 
research programs.
    The national sorghum checkoff program addresses both of these 
concerns.
    The assessment provisions of the Order are based on value, so 
variability of funding will lessen. Also, the revenue generated by a 
national sorghum checkoff program is anticipated to reach levels that 
can adequately fund large coordinated research programs in sorghum.
    The proponent requested that the implementation referendum be 
conducted within 3 years after assessments begin, which is consistent 
with the provisions of the Act. Approval will be based upon a majority 
of eligible persons voting for approval who have engaged in the 
production or importation of sorghum during the representative period 
established by the Secretary.
    The program will be administered by a 13-member Board appointed by 
the Secretary from industry nominations. The Board will recommend to 
the Secretary the assessment rate, programs and projects, budgets, and 
any rules and regulations that might be necessary for the 
administration of the program. The Board will consist of five producers 
nominated from the State with the largest production, three from the 
State with the second largest production, one from the State with the 
third largest production, and four producers to serve as at-large 
representatives, among which two representatives are appointed from 
States other than the top three sorghum producing States.
    Importers will be entitled to one seat if the value of assessments 
collected on imported sorghum reaches or exceeds the production of the 
State with the third largest sorghum production. Currently, imports of 
grain sorghum are very limited and not at a value that would trigger 
the provision of appointing an importer representative to serve on the 
Board. For example, Nebraska was the third largest producer of grain 
sorghum in 2006 at approximately 19,200,000 bushels. Imports of grain 
sorghum in 2006, according to USITC data, were 2,547 bushels.
    For the purpose of establishing the initial Board, USDA grain 
sorghum production data will be used to determine the top three grain 
sorghum producing States. Section 515(3) of the Act provides for 
periodic reapportionment of the Board. The Act provides that at least 
once every 5 years, but not more frequently than once every 3 years the 
Board shall review the geographical distribution of the production of 
the agricultural commodity covered by the Order including the quantity 
or value. If warranted, the Board will recommend reapportionment of the 
Board membership.
    The key to understanding reapportionment in the Order is the 
definition of production. For the purpose of reapportionment under 
Section 1221.100 of the Order, production means the total assessments 
collected by the Board during the last 5 crop years, excluding the high 
and low years.
    Section 1221.100(f) of the Order specifically uses the term 
production and does not refer to a quantity such as ``bushels'' 
harvested per acre. The intent of this is to use assessment collections 
as the basis for reapportionment.
    The Order uses this definition since it best accounts for the 
difference in geographic regions found in the sorghum belt where 
sorghum prices vary widely. Furthermore, NASS does not report pricing 
for sorghum forage, sorghum hay, sorghum haylage, sorghum billets, and 
sorghum silage, so the Board assessment records will provide a method 
to track the value of all types of sorghum. Using the assessment 
collections will permit the Board to analyze sorghum production in a 
consistent manner and base reapportionment decisions on a value as 
provided for in the Act.
    The Order establishes an assessment in section 1221.116 that will 
be paid by sorghum producers and importers. The assessment will be 
collected and remitted to the Board by first handlers. The term 
producer is defined in the proposal as any person who is engaged in the 
production and sale of sorghum in the United States and who owns or 
shares the ownership and risk of loss of the sorghum.
    Importer is defined as any person importing more than 1,000 bushels 
of grain sorghum; or 5,000 tons of sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, or sorghum silage into the United States in a 
calendar year as a principal or as an agent, broker, or consignee of 
any person who produces or purchases sorghum outside of the United 
States for sale in the United States, and who is listed as the importer 
of record for such sorghum. First handler is defined as the first 
person who buys or takes possession (excluding a common or contract 
carrier of sorghum owned by another) of more than 1,000 bushels of 
grain sorghum; or 5,000 tons of sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, or sorghum silage from producers in a 
calendar year for marketing. The term first handler includes a producer 
who markets sorghum of the producer's own production directly to 
consumers. It may also mean the Commodity Credit Corporation (CCC) in 
any case in which sorghum is pledged as collateral for a loan issued 
under any CCC price support loan program and the sorghum is forfeited 
by the producer in lieu of loan repayment.
    The definition of first handler is constructed so that any 
commercial grain elevator will meet the requirement of the definition 
by buying more than the minimum amount of grain sorghum in a calendar 
year and therefore will assess all grain sorghum purchased. The 
definition of first handler is designed to exclude small cattle feeding 
operations and dairies that would buy less than 1,000 bushels of grain 
sorghum or 5,000 tons of sorghum forage, sorghum hay, sorghum haylage, 
sorghum billets, or sorghum silage. The Order does not have a de 
minimis clause applicable to producers, but it does define first 
handler and importer in a way as to exclude very small entities.
    As mentioned above, the approximately 1,850 first handlers of 
sorghum will collect and remit assessments to the Board. First handlers 
will remit assessments to the Board on a monthly basis along with a 
report detailing the volume of sorghum on which assessments were 
collected as well as identifying the State in which the sorghum was 
produced. Information regarding the origin of the sorghum's production 
is necessary so that the Board can make recommendations to USDA 
regarding reapportionment of its membership.
    Section 1221.119 of the Order provides for refunds. Any producer or 
importer from whom an assessment is collected and remitted to the 
Board, or who pays an assessment directly to the Board, through the 
announcement of the results of the implementing referendum,

[[Page 25403]]

upon failure of the referendum will then have the right to receive from 
the Board a refund of assessments paid. Any producer or importer 
requesting a refund will be required to submit an application on the 
prescribed form to the Board within 60 days from the date the 
assessments were paid by such producer or importer, but no later than 
the date the results of the required referendum are announced by the 
Secretary. Section 1221.112(j) provides for an allocation of a portion 
of all assessments collected to be made available to qualified State 
sorghum producer organizations. Each year the Board will establish an 
allocation amount of no less than 15 percent but no more than 25 
percent of the total assessments collected on all sorghum available for 
any fiscal period, less the expenses incurred by the Secretary for 
administration and supervision of the Order. The funds can be made 
available for use by qualified sorghum producer organizations pursuant 
to section 1221.128 for State programs of generic promotion, research, 
and information. Amounts allocated by the Board for State generic 
promotion, research, and information programs will be based on requests 
submitted to the Board by qualified sorghum producer organizations. An 
important aspect of the availability of an allocation to a qualified 
State organization is that the organization will not automatically 
receive a 15-25 percent allocation. Each year the qualified 
organizations will have to submit requests for the funds, which can be 
for no more than their allocated amount. A detailed plan describing 
projects with budgets would be a part of this request to demonstrate 
that the allocation will be used in a way consistent with the Act and 
Order.
    An example of how an allocation amount could be determined is as 
follows:

    A particular qualified State organization contributes 40 percent 
of the total assessments collected by the Board for the previous 
annual fiscal period. Total assessments collected less the USDA 
expenses for the previous fiscal period were $12,300,000. The Board 
has set the allocation amount at 25 percent. The qualified 
organization representing that State may submit requests up to 
$1,230,000 ($12,300,000 x 40 percent x 25 percent).

    The Order provides for exemptions from assessments under specific 
conditions. Any importer of less than and including 1,000 bushels of 
grain sorghum; or 5,000 tons of sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, or sorghum silage per calendar year may claim 
an exemption from the assessment required under section 1221.116. An 
importer desiring an exemption must apply to the Board for a 
certificate of exemption and certify that the importer will import less 
than the above stated quantities of sorghum. The Board will then issue 
a certificate of exemption and the importers who receive a certificate 
of exemption will be eligible for reimbursement of assessments 
collected by Customs. The Board may require persons receiving an 
exemption from assessments to provide to the Board reports on the 
disposition of exempt sorghum and, in the case of importers, proof of 
payment of assessments.
    A producer or importer who operates under an approved National 
Organic Program (NOP) (7 CFR part 205) system plan; produces only 
products that are eligible to be labeled as 100 percent organic under 
the NOP may be exempt from the payment of assessments. The producer or 
importer must submit a request to the Board annually as long as the 
producer continues to be eligible for the exemption.
    The Order is summarized as follows: Sections 1221.1 through 1221.32 
of the Order define certain terms such as producer, handler, and 
importer which are used in the Order.
    Sections 1221.100 through 1221.111 include provisions relating to 
the Board. These provisions cover establishment and membership, 
nominations nominee's agreement to serve, appointment, term of office, 
vacancies, removal, certification of organizations, procedure, 
compensation and reimbursement, powers and duties, and prohibited 
activities.
    Section 1221.112 through 1221.120 covers expenses and assessments. 
Sections 1221.112 through 1221.115 include provisions relating to 
budget and expenses, financial statements, operating reserve, and 
investment of funds. Section 1221.116 through 1221.120 include 
provisions related to assessments and specify assessment rates, and the 
imposition of late payment charges. Also included are provisions for 
exemptions, refund, escrow accounts, refunds, and procedures for 
obtaining a refund. Section 1221.116 was changed by AMS in the proposed 
rule to specify that if Customs does not collect an assessment from an 
importer, the importer is responsible for paying the assessment to the 
Board.
    Section 1221.221 through 1221.223 covers programs, plans, and 
projects detailing the types of activities to be engaged by the Board. 
Also covered are provisions for an independent evaluation and the 
protection of patents, copyrights, inventions, trademarks, information, 
publications, and product formulations derived from assessment funded 
activities.
    Section 1221.124 through 1221.127 includes provisions for reporting 
requirements on first handlers and importers; books and records; use of 
information; and the confidential treatment of all personally 
identifiable information obtained from books and records of persons 
subject to the Order.
    Section 1221.128 covers the qualification by the Secretary of State 
organizations that would be eligible to receive funding from the Board. 
Section 1221.128 was changed by AMS in the proposed rule by adding 
paragraph (e) to express the primary considerations in determining the 
qualification of an organization to receive funding.
    Sections 1221.129 through 1221.138 discusses the rights of the 
Secretary; referenda; suspension or termination; proceeding after 
termination; effects of termination or amendment; personal liability; 
separability; amendments; rules and regulations; and OMB numbers.
    The changes suggested by the commenters are discussed below, along 
with changes made by USDA upon further review. Also, USDA has made 
other miscellaneous changes for the purpose of clarity and accuracy. 
For the readers' convenience, the discussion of comments is organized 
by topic headings.

Comments

    USDA published a proposed Order on November 23, 2007 [72 FR 65849] 
with a request for comments on the proposal to be received by January 
22, 2008. USDA received 215 timely comments on the proposed Order. Five 
comments were received after the close of the comment period. No new 
issues were raised by these comments. Twenty-three of the comments were 
from State and national organizations representing producers or 
providing agricultural related services from the States of Arkansas, 
Nebraska, Kansas, Texas, Oklahoma, and Colorado. One of these 
organizations represents itself as the largest importer of sorghum into 
the United States. Five of these organizations submitted comments in 
opposition to the proposed Order. One hundred sixty-seven comments were 
submitted by producers in support of the proposed Order from the States 
of Arkansas, Colorado, Kansas, Texas, New Mexico, South Dakota, 
Nebraska, and Missouri. Twenty-two producers submitted comments 
opposing the proposal in part or in whole.

[[Page 25404]]

Supporting Comments

    One hundred thirty-seven comments identified the pooling of 
resources as a significant benefit of a national mandatory sorghum 
checkoff program. Several of these comments cited the Soybean and 
Cotton Checkoff programs as successful farmer funded self-help programs 
that have contributed substantially to the benefit of their respective 
industries. These comments stressed that for sorghum to remain a viable 
rotation crop, a national sorghum checkoff program must be implemented.
    Some comments addressed funded research as a resulting benefit of 
establishing a national mandatory sorghum checkoff program.
    Eight comments, in support of the proposal, specifically identified 
the proposed funding allocation to States as an appropriate way to help 
support State level research and promotion initiatives while 
emphasizing the financial strength of a national sorghum checkoff 
program.
    One hundred twelve comments, in support of the proposal, identified 
weed control as an area where a national sorghum checkoff program could 
fund major research. Comments from producers and large and small 
production States specifically mentioned shatter cane and other grasses 
as important areas of weed control research that could be performed by 
the national sorghum checkoff program.
    Sixty-four comments addressed the need for national level research 
relating to the development of cellulosic ethanol production. These 
comments were submitted by producers of both grain and forage type 
sorghums.
    Sixty-eight comments suggested that research into improving sorghum 
yields has been historically underfunded, especially when compared to 
the tremendous amount of resources devoted by private companies into 
corn and soybean yield research. These comments were submitted by 
producers from large and small production States.
    Twenty comments specifically mentioned that a national sorghum 
checkoff program could more effectively fund sorghum breeding and 
genetics programs. Some of these comments suggested that improved 
varieties would encourage greater planted acreage and production, which 
would expand and stabilize sorghum markets.
    Twenty-six comments, in favor of the proposal, specifically 
mentioned that a national sorghum checkoff program could address the 
issues of developing new markets, domestic and foreign, for grain 
sorghum.

Assessment Rate Cap

    Seventy-two supporting comments recommended changing text in 
section 1221.116, Assessments, to clarify that the assessment rates on 
grain and silage may not be raised above a cap of 1 percent. These 
comments suggest changing the text in section 1221.116 so that the 
maximum modification of the assessment rate would be 0.4 percent of net 
market value in 1221.116(c)(1) and 0.65 percent of net market value in 
1221.116(c)(2). This would cap the assessment rates for all sorghum at 
1 percent of net market value. We agree that a clarification is 
appropriate. However, USDA has changed section 1221.116(c)(1), section 
1221.116(c)(2), and section 1221.116(e) so that the Order reflects the 
intent of the original submission by the proponent. The cap for the 
assessment rates at 1 percent of the net market value will appear only 
in section 1221.116(e). Further, any change in the assessment rates 
must be promulgated through regulations approved by the Secretary.

Other Changes for Consistency With NSP Submission

    Several supportive commenters recommended five changes to the 
regulatory text in the Order to make the text consistent with the 
intent of the original submission of the proponent and to correct 
miscellaneous grammatical errors.
    The comments recommended changing 1221.104(c)(5) by adding ``at 
large national representatives shall also have their staggered terms 
assigned by the Secretary''; removing an unnecessary semicolon from 
1221.117; correcting a section reference in 1221.123 from 1221.131 to 
1221.132; changing an ``or'' to ``and'' in 1221.130(b)(3) so that a 
petition for a referendum would require 10 percent of eligible 
producers and importers (A similar change was also supported by an 
organization that opposes the proposal); adding ``and Importers'' to 
1221.130(c) to reflect that both producers and importers, who are 
eligible, may vote in referendums. These changes have merit and have 
been made in the final rule.

Opposing Comments

    Twenty-two comments from producers and five comments from 
organizations were submitted opposing the implementation of the 
proposal or portions thereof. A number of topics were discussed.

Board Membership

    Five organizations, opposing the proposal, submitted comments 
regarding Board membership and asserted that the proposed Board 
structure favors the largest production States. Further, that the 
largest production State would control 40 percent of the Board's 
membership. They believe that this would allow the largest production 
States to influence the spending of resources for promotion and 
research to the exclusion of small production States.
    One commenter suggested that as an alternative to creating a 
national sorghum checkoff program, the sorghum industry should continue 
under the current system of State legislated and voluntary State level 
sorghum checkoff programs and be encouraged to establish a coordinating 
checkoff board comprised of State programs.
    One commenter recommended adoption of a method of apportionment 
that would prevent any State from having more than 25 percent of Board 
seats. One commenter noted that the Board would have broad powers under 
1221.112 and 1221.116 and that the interest of small production States 
would not be represented under the proposed Board structure.
    To address this issue, the apportionment method suggested by the 
commenter distributes Board seats using a combination of representation 
assigned to the top five production States and dividing the remainder 
of sorghum production areas into four regions. States and regions would 
then be allotted representation based on the value production. States 
or regions with production valued at less than $75 million would get 
one member. States of regions with production valued between $75 
million and $225 million would receive two members, and States or 
regions with production valued above $225 million would receive three 
members. Importers would receive membership using the same criteria 
based on the value of imported product. Under this system the size of 
the Board would expand and contract as acreage and crop prices change, 
and a five year average of crop value would be calculated annually to 
determine Board membership.
    Other commenters reviewed this alternative representation mechanism 
and offered comments regarding its merits. These comments noted that 
under the alternative representation mechanism, the number of Board 
members would continue to increase as sorghum production increases thus 
potentially leading to an overly large board and increased 
administrative costs associated with travel and Board meetings. These 
commenters also suggested that the alternative representation plan does 
not

[[Page 25405]]

substantially contribute to minimizing majority membership for the 
largest production States.
    The alternative apportionment method suggested by the commenter is 
significantly different from the proposal and has not been subject to 
public comment. Nonetheless, USDA believes that a board comprised of 13 
members is an appropriate and reasonable size for the anticipated 
revenue of the national sorghum checkoff program. Further, based on 
review of the comments, grain sorghum production is heavily 
concentrated in three States. Based on 2007 NASS production data, three 
States account for 79 percent of the total United States production. 
Therefore, USDA believes it reasonable to have Board representation 
reflect this production. Additionally, under the representation 
mechanism proposed in the Order, certified organizations are 
responsible for the submission of qualified nominees from all 
geographic areas to fill at-large positions for nomination and 
appointment to the Board by the Secretary. Also, representation on the 
Board will be reviewed at least once every five years and the Board may 
recommend to the Secretary that representation be altered to reflect 
any change in geographical distribution of domestic sorghum production. 
Sorghum imported into the United States will also be reviewed. Board 
members are appointed by the Secretary and are expected to make 
decisions that would benefit the entire sorghum industry. Therefore, 
USDA is finalizing this section as proposed.

Allocation of Assessments to States

    Several opposing commenters stated that the ``pass-back'' 
allocation (section 1221.112(j) is too small and recommended an 
increase to 50 percent citing the Beef Promotion and Research Order and 
the Soybean Promotion, Research, and Consumer Information Order as 
examples. Other commenters suggested that the funding allocation should 
be automatically provided to States at 50 percent. Several commenters 
asserted that the proposal's funding allocation provision will not 
provide adequate funding to maintain State checkoff programs given 
different research needs in small production States. Several of these 
opposing commenters suggested that research needs are different in 
small production States because grain sorghum utilization varies among 
small States. They asserted that small production States are interested 
in weed control research and verification and not interested in 
breeding programs or ethanol research. Further, they stated that 
without proper representation on the Board, combined with loss of 
individual assessment funding, they believed research vital to their 
interest will go unfunded. They contended, their assessments would go 
to fund research that would not benefit small production States, and 
university researchers in small production States would lose funding. 
They noted that other national programs, such as the Soybean Promotion, 
Research, and Consumer Information Order in particular, have 
implemented programs that left State programs at least as well off 
after implementation of the national program.
    As previously noted, eight comments, in support of the proposal, 
specifically identified the proposed funding allocation to States as an 
appropriate way to help support State level research and promotion 
initiatives while emphasizing the financial strength of a national 
sorghum checkoff program.
    Seven supportive commenters rebutted these comments opposed to the 
proposed State funding allocation. Several of the supporting commenters 
noted that the State funding allocation was not intended to be a 
funding mechanism for State checkoff boards but, rather a method to 
fund promotion and research initiatives specific to States that are not 
currently addressed by national promotion and research initiatives. 
Some commenters noted that, currently, State checkoffs are responsible 
for costs associated with collecting assessments while under the 
proposal they would have no such costs because the national Board would 
collect assessments. These commenters suggested that, in addition to 
the State funding allocation, these qualified State programs could 
apply for and receive additional funding from the Board on a project-
by-project basis.
    One supportive commenter responding to the opposing comments on 
State funding allocation stated that the commenter had visited 
personally with a number of university researchers regarding the State 
funding allocation. This commenter stated that these researchers had no 
reservation competing on a national level for research funding and that 
in doing so felt that the research proposals with the most merit would 
rise to priority and receive funding. Other supportive commenters noted 
that while the Beef Promotion and Research Order and the Soybean 
Promotion, Research, and Consumer Information Order retain 50 percent 
of assessments, other checkoffs do not.
    The Lamb Promotion, Research, and Information Order and Blueberry 
Promotion, Research, and Information Order provide no funding 
allocation back to States. The Cotton Research and Promotion Order, the 
oldest program, passes back 5 percent to States and the Peanut 
Promotion, Research, and Information Order currently returns 20 percent 
to States. The National Pork Promotion, Research, and Consumer 
Information Order, on average, returns about 16 percent to States.
    While several existing national checkoff programs provide varying 
degrees of funding to State research, promotion, and information 
efforts, some of these programs have percentages established by statute 
while other programs have percentages established in their order's 
provisions. The proposed Order provided for an annual allocation to 
State programs based on a State's proportional contribution of total 
assessments collected by the national sorghum checkoff program. The 
allocation amount would be no less than 15 percent but no more than 25 
percent of total assessments collected. We believe that the provision 
provides for a reasonable allocation for State generic programs while 
maintaining an appropriate level of funding for the national program. 
Also, a 50 percent funding allocation should be subject to public 
comment. Further, the national program does not preempt existing State 
checkoff programs. Thus, States are not precluded from establishing or 
continuing a State checkoff program in addition to a national sorghum 
checkoff Program. Accordingly, these suggestions are not adopted.

Referendum

    A number of opposing commenters stated they were against a delayed 
referendum. Some commenters cited their organization's policies that 
state that commodity checkoff programs should be approved by producer 
referendum prior to implementation or change of a program. Other 
commenters suggested that no one should be subject to assessment 
without the opportunity to vote in a referendum beforehand.
    A number of supporting commenters reviewed the opposing comments 
regarding the delayed referendum and submitted additional comments. 
These commenters stated that accurately identifying all sorghum 
producers who would be eligible to vote in the referendum is not 
possible prior to the collection of assessments, thereby making it 
impractical to conduct an up-front referendum. Other commenters cited 
that it would be problematic and impractical to conduct an up-front 
referendum due to the significant expense of a referendum when there 
are

[[Page 25406]]

no funds available to reimburse USDA for the expense.
    Section 518 of the Act provides for both required referenda and 
optional referenda for determining whether persons covered by an order 
favor the order. The Act provides for an optional referendum procedure 
that authorizes an up-front referendum for which, USDA has historically 
required the proponent industry to post a bond well in advance of an 
order's effective date to cover all costs associated with development 
of an order as well as referendum expenses.
    The Act allows for a referendum to be conducted up to three years 
after the effective date of the Order. This allows all persons subject 
to the Order a sufficient amount of time to observe the management and 
functioning of the new program before making a decision regarding its 
continuation. Further, the Order provides an opportunity to request and 
receive a refund of assessments if the initial referendum fails. 
Accordingly, USDA is finalizing the Order with the delayed referendum 
requirement. Prior to the referendum, USDA will issue regulations for 
public comment regarding the process in which the referendum will be 
conducted.

First Handlers

    A number of comments and requests for clarification were made 
regarding first handlers and their role in the sorghum promotion, 
research, and information program. Among the topics raised were: 
Reimbursement payments to first handlers for cost associated with 
collections; economic impact analysis; redefining first handlers; 
recording the State of origin of sorghum; first handler representation 
on the Board; clarifying the time of assessment collection; and 
clarification of the date of sale.

Payments to First Handlers

    A commenter stated the commenter's belief that first handlers would 
bear the burden of implementing the checkoff and, therefore requested 
that USDA consider reimbursing first handlers up to 10 percent of 
sorghum checkoff assessments collected to offset the direct costs 
incurred in collecting, submitting, and maintaining records for the 
national sorghum promotion, research, and information program. While 
first handlers are subject to the Order, the Act does not provide for 
such reimbursement of administrative expenses to first handlers or 
anyone else in the marketing chain. Accordingly, USDA does not accept 
this proposed change.

Definition of First Handler

    A commenter suggested that the definition of first handler be 
changed because 1,000 bushels is too low of a limit to exclude a 
handler from their obligation to pay the assessment. This commenter 
also suggested that grain buyers may not know at the beginning of the 
year how much sorghum they will buy, thus placing them in the position 
of either refunding assessments if they don't reach the 1,000 bushel 
limit or assessing after-the-fact once they reach the trigger. Either 
way, the commenter suggested, that this would cause an undue burden on 
the handler.
    We disagree. The definition of first handler is constructed so that 
every commercial grain elevator, under current industry practices, 
would exceed the threshold since they typically buy more than the 
minimum threshold amount of sorghum in a calendar year. Therefore, all 
sorghum purchased by first handlers would be assessed.
    The definition of first handler is designed to exclude small cattle 
feeding operations and dairies that would buy less than 1,000 bushels 
of grain sorghum or 5,000 tons of sorghum forage, sorghum hay, sorghum 
haylage, sorghum billets, or sorghum silage. According to NASS data, 
the average U.S. sorghum production in 2007 was 74.2 bushels per acre. 
Any commercial grain elevator that purchases 13.5 acres of sorghum will 
have met the definition. According to the NASS' 2002 Census of 
Agriculture, the average grain sorghum farm size was 204 acres. If a 
commercial grain elevator has even one grain sorghum producing 
customer, they would likely meet the limit more than 15 times over. 
Accordingly, USDA believes that the 1,000 bushel limit is appropriate 
and will not burden commercial grain buyers. Accordingly, this 
suggestion to change the definition of first handler is not adopted.

State of Origin of Sorghum

    A commenter suggested that the requirement for first handlers to 
keep records of the State of Origin of their sorghum purchases is a 
burden that is not part of their regular course of business. This 
requirement is essential to the Board's determination of 
representation, which is based on assessment collections for each 
State. The information is also needed in identifying the appropriate 
State to receive funding allocations. A similar requirement is part of 
the Soybean Promotion, Research, and Consumer Information Order's 
recordkeeping requirements as well as other State programs and has not 
proven to be a substantial burden. The burden estimated under this 
program is minimal and necessary for carrying out the provisions of the 
Order. Accordingly, this comment is not adopted.

First Handler Representation on Board

    A commenter criticized the lack of representation of first handlers 
on the Board stating that first handlers deserved representation 
because of the disproportionate economic impact they will incur as a 
result of implementing the checkoff. We disagree. The program's effect 
on first handlers is not unreasonable. Further, the representation 
provisions of the Order are appropriate as they afford representation 
to those persons who pay the assessments. Accordingly, this comment is 
not adopted.

Time of Assessment Collection

    A commenter asked for clarification of the term handled as it 
relates to the timing of the assessment collection. While the 
collection of assessments is on handled sorghum the assessment occurs 
at the time the producer sells the sorghum and the net market value is 
established. Also, the c