[Federal Register Volume 72, Number 139 (Friday, July 20, 2007)]
[Rules and Regulations]
[Pages 39730-39733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3554]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

7 CFR Parts 800 and 810

RIN 0580-AA91


United States Standards for Sorghum

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION: Final rule.

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SUMMARY: We are revising the United States Standards for Sorghum to 
amend the definitions of the classes Sorghum, White sorghum, and Tannin 
sorghum, and to amend the definition of nongrain sorghum. We are 
amending the grade limits for broken kernels and foreign material 
(BNFM), and the subfactor foreign material (FM). Additionally, we are 
inserting a total count limit for other material into the standards and 
revising the method of certifying test weight (TW). Further, we are 
changing the inspection plan tolerances for BNFM and FM. These changes 
will help facilitate the marketing of sorghum.

DATES: Effective Date: June 1, 2008.

FOR FURTHER INFORMATION CONTACT: Patrick McCluskey at GIPSA, USDA, 
Suite 180 STOP 1404, 6501 Beacon Drive, Kansas City, MO, 64133; 
Telephone (816) 823-4639; fax (816) 823-4644.

SUPPLEMENTARY INFORMATION:

Background

    The United States Grain Standards Act (USGSA) authorizes the 
Secretary of Agriculture to establish official standards of kind and 
class, quality and condition for sorghum and other grains (7 U.S.C. 
76). The United States Standards for Grain serve as the starting point 
to define grain quality in the marketplace. The United States Standards 
for Sorghum are in the regulations at 7 CFR 810.1401-810.1405.
    On September 24, 2003, GIPSA was asked by the National Sorghum 
Producers (NSP, formerly National Grain Sorghum Producers) to initiate 
a review of the sorghum standards. Accordingly, in the December 17, 
2003 Federal Register (68 FR 70201), through an Advance Notice of 
Proposed Rulemaking (ANPR) we requested views and comments on the 
sorghum standards. We received 35 comments to the ANPR. In the March 
29, 2006 Federal Register (71 FR 15633-15639) we invited comments to 
our proposed rule identifying changes to the United States Standards 
for Sorghum to:
    (1) Delete the reference to tannin content from definitions of 
Sorghum, Tannin sorghum and White sorghum, and define these classes 
based on the presence or absence of a pigmented testa (subcoat);
    (2) Revise the definition of nongrain sorghum by deleting sorghum-
sudangrass hybrids, sorgrass, and adding language referencing seeds of 
Sorghum bicolor (L.) Moench that appear atypical of grain sorghum;
    (3) Reduce the grading limits for broken kernels and foreign 
material (BNFM) and the subfactor foreign material (FM);
    (4) Insert a total count limit of 10 for other material used to 
determine sample grade factors;
    (5) Report the certification of sorghum test weight in tenths of a 
pound per bushel; and
    (6) Revise the sorghum breakpoints and associated grade limits for 
U.S. Nos. 1, 2, 3, and 4 BNFM and FM.

Comment Review

    We received 11 comments expressing a variety of views during the 60 
day comment period for the proposed rule. We received comments from 
sorghum producers, producer and other industry organizations, grain 
handlers, and a sorghum researcher.
    Overall, the comments supported all or a significant portion of the 
changes. A few commenters opposed specific portions of the changes. 
Some commenters requested additional changes beyond the scope of the 
proposed rule: Deleting the separate reference to FM but retaining the 
standard for total BNFM in the sorghum standard; deleting the reference 
to other grains from the definition of Damaged Kernels and Heat-damaged 
Kernels; and standardizing feed grain standards. We will consider these 
comments for future work on the standards.

Sorghum Class Definitions

    We proposed removing the reference to tannin content from 
definitions of Sorghum, Tannin sorghum and White sorghum, and define 
these classes based on the presence or absence of a pigmented testa 
(subcoat). We received nine comments on the proposal to remove the word 
tannin from the class definitions of Sorghum, Tannin sorghum, and White 
sorghum. Eight commenters directly supported the proposal as written 
and the other commenter did not oppose the proposal as written. No 
comments were received opposing the proposal. Of the supporting 
comments, most used identical language to state that defining sorghum 
based on the lack of a pigmented testa (subcoat) addressed the concerns 
of sorghum marketing organizations. Accordingly, we are amending the 
sorghum standards to remove the reference to tannin content from 
definitions of Sorghum, Tannin sorghum and White sorghum, and define 
these classes based on the presence or absence of a pigmented testa 
(subcoat), as set forth in the proposal.

Nongrain Sorghum Definition

    We proposed changing the definition of nongrain sorghum by (1) 
removing sorgrass and sorghum-sudangrass hybrids by (2) adding the 
words ``seeds of Sorghum bicolor (L.) Moench that appear atypical of 
grain sorghum.'' No commenters opposed or supported the proposal as 
written. Sorghum-sudangrass hybrids (botanically, Sorghum bicolor (L.) 
Moench), despite being grown as a forage crop, can either produce 
kernels which appear typical of grain sorghum or kernels that appear 
atypical of grain sorghum. We continue to believe that there is no 
reason to count kernels which appear typical of grain sorghum as 
nongrain sorghum, and this proposed change is made final herein.
    Comments were received supporting the removal of sweet sorghum 
(sorgo) from the definition of nongrain sorghum because botanically, 
sweet sorghum is Sorghum bicolor (l.) Moench, as is grain

[[Page 39731]]

sorghum and sorghum-sudangrass hybrid. We discussed removing sweet 
sorghum (sorgo) from the definition of nongrain sorghum in the proposed 
rule but did not propose it as a change to the standards, taking into 
account comments received as a result of the ANPR. Sweet sorghum plants 
can produce kernels that appear either typical or atypical of grain 
sorghum. Using the same rationale applied to sorghum-sudangrass 
hybrids, we believe there is no reason to count sweet sorghum kernels 
which appear typical of grain sorghum as nongrain sorghum. Further, the 
additional wording ``and seeds of Sorghum bicolor (L.) Moench that 
appear atypical of grain sorghum'' will allow sweet sorghum kernels 
which appear atypical of grain sorghum to be counted as nongrain 
sorghum. Therefore, based on the comments received, we will delete 
sweet sorghum (sorgo) from the definition of nongrain sorghum.
    Finally, comments noted that producers appear to be restricted from 
receiving any program support from USDA because of the continuing 
classification of sweet sorghum as a nongrain. However, market 
conditions drive standards development and amendment, not eligibility 
for program support from USDA. Nonetheless, the definition of nongrain 
sorghum will be changed, but not because of this comment.

BNFM and FM Grade Limits

    We proposed reducing the grade limits for BNFM and the subfactor 
FM. Comments noted that proposed revisions to the limits for BNFM and 
the subfactor FM would make it very difficult to achieve U.S. Number 1. 
We carefully considered the technical constraints and concerns raised 
as a result of this proposed change. Currently, U.S. Number 2 is the 
common trading standard and our analysis showed virtually no difference 
in the percentage of sorghum receiving the Number 2 grade (BNFM: 100.0 
percent versus 99.8 percent; FM: 99.9 percent versus 95.8 percent) as a 
result of reducing the grade limits. We believe there will be no 
aggregate negative impact on the export sorghum market. Likewise, we 
believe changes to the sorghum standards must serve to improve market 
efficiency and encourage the production and delivery of high quality 
sorghum. Therefore, we are making no changes based on this comment.

Total Other Material Count

    We proposed limiting the total number of pieces of other material 
upon which sample grade factor determinations are made. Eight comments 
were received supporting the proposal specifically or by inference. No 
comments were received opposing the proposal. Sorghum is used as a food 
grain in much of the world, thus the sample grade limit for sorghum 
should be consistent with the sample grade limits for other grains used 
as food. Accordingly, we are amending the sorghum standards to include 
a maximum count limit of 10 for the total of other material used to 
determine sample grade factors.

Test Weight Certification

    We proposed revising the certification of sorghum test weight from 
TW from whole and half pounds, with a fraction of a half pound 
disregarded, to certification in tenths of a pound. One comment was 
received in support of the proposal, and no comments were received 
opposing the proposal as written. Accordingly, as set forth in the 
proposal, we are amending the grain standards to revise the 
certification of sorghum test weight.

Inspection Plan Tolerances

    Shiplots, unit trains, and lash barge lots are inspected with a 
statistically based inspection plan. Inspection tolerances, commonly 
referred to as Breakpoints (BP), are used to determine acceptable 
quality. The revisions to the sorghum standards require revisions to 
some breakpoints. Accordingly, we are revising Table 15 of section 
800.86(c)(2) to reflect the corresponding changes in the established 
inspection plan tolerances. The grade limits (GL) for sorghum are also 
revised in Table 15.

Effective Date

    As specified in the USGSA (7 U.S.C. 76(b)), amendments to the 
standards cannot become effective less than one calendar year after 
public notification, unless in the judgment of the Secretary, the 
public health, interest, or safety require that they become effective 
sooner. In accordance with that section of the Act, it is determined 
that it is in the public interest to have this final rule effective on 
June 1, 2008, in order to coincide with the start of the 2008 sorghum 
harvest, and to facilitate domestic and export marketing of sorghum.

Executive Order 12866 and Regulatory Flexibility Act

    This action has been determined to be exempt for the purposes of 
Executive Order 12866, and therefore has not been reviewed by the 
Office of Management and Budget.
    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
requires agencies to consider the economic impact of each rule on small 
entities and evaluate alternatives that would accomplish the objectives 
of the rule without unduly burdening small entities or erecting 
barriers that would restrict their ability to compete in the market.
    We are amending the grain standards to change the definition of 
sorghum classes by deleting references to tannin and adding language 
referencing the presence or absence of a pigmented testa. We are 
amending the definition of nongrain sorghum by removing sorghum-
sudangrass hybrids, sorgrass, and sweet sorghum (sorgo), and adding 
language referencing seeds of Sorghum bicolor (L.) Moench that appear 
atypical of grain sorghum. We are amending the grade and grade 
requirements for sorghum by reducing the grading limits for broken 
kernels and foreign material (BNFM) and the subfactor foreign material 
(FM), and inserting a total count limit of 10 for other material used 
to determine sample grade factors. We are amending the grain standards 
to report the certification of test weight in tenths of a pound. The 
changes made to the sorghum standards in this final rule are needed to 
ensure market-relevant standards and grades and facilitate the 
marketing of grain.
    Under the provisions of the USGSA, grain exported from the United 
States must be officially inspected and weighed. The regulations and 
standards are applied equally to all entities.
    We provide mandatory inspection and weighing services at 33 export 
elevators (including four floating elevators). All of these facilities 
are owned by multi-national corporations, large cooperatives, or public 
entities that do not meet the requirements for small entities 
established by the Small Business Administration.
    The U.S. sorghum industry, including producers (approximately 
40,000 (USDA-2002 Census of Agriculture)), handlers, processors, and 
merchandisers are the primary users of the U.S. Standards for Sorghum 
and utilize the official standards as a common trading language to 
market grain sorghum. We assume that some of the entities may be small.
    In addition to GIPSA, there are 55 official agencies that perform 
official services under the USGSA. Most users of the official 
inspection and weighing services, and the entities that perform these 
services, do not meet the regulations for small entities.
    The USGSA (7 U.S.C. 87f-1) requires the registration of all persons 
engaged in the business of buying, handling,

[[Page 39732]]

weighing, or transporting grain for sale in foreign commerce. The USGSA 
regulations (7 CFR 800.30) define a foreign commerce grain business as 
persons who regularly engage in buying for sale, handling, weighing, or 
transporting grain totaling 15,000 metric tons or more during the 
preceding or current calendar year. At present, there are 92 
registrants who account for practically 100 percent of U.S. sorghum 
exports, which for fiscal year (FY) 2005 totaled approximately 
3,138,580 metric tons (MT). While most of the 89 registrants are large 
businesses, we assume some may be small.
    GIPSA determined that this final rule will not have a significant 
economic impact on a substantial number of small entities, as defined 
in the Regulatory Flexibility Act.

Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act of 1995, the existing 
information collection requirements are approved under OMB Number 0580-
0013. No additional collection or recordkeeping requirements are 
imposed on the public by this final rule. Accordingly, OMB clearance is 
not required by section 350(h) of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., or OMB's implementing regulation at 5 CFR part 
1320.

E-Government Compliance

    We are committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

Executive Order 12988

    Executive Order 12988, Civil Justice Reform, instructs each 
executive agency to adhere to certain requirements in the development 
of new and revised regulations in order to avoid unduly burdening the 
court system. The final rule was reviewed under this Executive Order 
and no additional related information has been obtained since then. 
This final rule is not intended to have a retroactive effect. The 
United States Grain Standards Act provides in Section 87g that no State 
or subdivision may require or impose any requirements or restrictions 
concerning the inspection, weighing, or description of grain under the 
USGSA. Otherwise, this final rule will not preempt any State or local 
laws, regulations, or policies, unless they present any irreconcilable 
conflict with this rule. There are no administrative procedures which 
must be exhausted prior to any judicial challenge to the provisions of 
this final rule.

List of Subjects

7 CFR Part 800

    Administrative practice and procedure, Conflict of interests, 
Exports, Freedom of information, Grains, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements.

7 CFR Part 810

    Exports, Grains.

0
For reasons set out in the preamble, 7 CFR parts 800 and 810 are 
amended as follows:

PART 800--GENERAL REGULATIONS

0
1. Revise the authority citation for part 800 to read as follows:

    Authority: 7 U.S.C. 71-87k.


0
2. In Sec.  800.86(c)(2), revise table 15 to read as follows:


Sec.  800.86  Inspection of shiplot, unit train and lash barge grain in 
single lots.

* * * * *
    (c) * * *
    (2) * * *

                                              Table 15.--Grade Limits (GL) and Breakpoints (BP) for Sorghum
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Maximum limits of--
                                                                                     -------------------------------------------------------------------
                                                                                               Damaged kernels             Broken kernels and foreign
                                                                       Minimum test  ----------------------------------             material
                               Grade                                    weight per                                     ---------------------------------
                                                                     bushel (pounds)    Heat-damaged                                         Foreign
                                                                                         (percent)     Total (percent)  Total (percent)      material
                                                                                                                                            (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              GL BP            GL BP            GL BP            GL BP            GL BP
U.S. No. 1.........................................................       57.0 -0.4          0.2 0.1          2.0 1.1          3.0 0.5          1.0 0.4
U.S. No. 2.........................................................       55.0 -0.4         0.5 -0.4          5.0 1.8          6.0 0.6          2.0 0.5
U.S. No. 3 \1\.....................................................       53.0 -0.4          1.0 0.5         10.0 2.3          8.0 0.7          3.0 0.6
U.S. No. 4.........................................................       51.0 -0.4          3.0 0.8         15.0 2.8         10.0 0.8          4.0 0.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Sorghum that is distinctly discolored shall be graded not higher than U.S. No. 3.

* * * * *

PART 810--OFFICIAL UNITED STATES STANDARDS FOR GRAIN

0
3. Revise the authority citation for part 810 to read as follows:

    Authority: 7 U.S.C. 71-87k.

0
4. In Sec.  810.102, revise paragraph (d) to read as follows:


Sec.  810.102  Definition of other terms.

* * * * *
    (d) Test Weight per bushel. The weight per Winchester bushel 
(2,150.42 cubic inches) as determined using an approved device 
according to procedures prescribed in FGIS instructions. Test weight 
per bushel in the standards for corn, mixed grain, oats, sorghum, and 
soybeans is determined on the original sample. Test weight per bushel 
in the standards for barley, flaxseed, rye, sunflower seed, triticale, 
and wheat is determined after mechanically cleaning the original 
sample. Test weight per bushel is recorded to the nearest tenth pound 
for corn, rye, sorghum, soybeans, triticale, and wheat. Test weight per 
bushel for all other grains, if applicable, is recorded in whole and 
half pounds with a fraction of a half pound disregarded. Test weight 
per bushel is not an official factor for canola.
* * * * *

0
5. In Sec.  810.1402, revise paragraphs (c)(1) through (c)(3) and (h) 
to read as follows:


Sec.  810.1402  Definition of other terms.

* * * * *
    (c) * * *
    (1) Sorghum. Sorghum which lacks a pigmented testa (subcoat) and 
contains less than 98.0 percent White sorghum and not more than 3.0 
percent Tannin sorghum. The pericarp color of this class may appear 
white, yellow, red, pink, orange or bronze.

[[Page 39733]]

    (2) Tannin sorghum. Sorghum which has a pigmented testa (subcoat) 
and contains not more than 10 percent of kernels without a pigmented 
testa.
    (3) White sorghum. Sorghum which lacks a pigmented testa (subcoat) 
and contains not less than 98.0 percent kernels with a white pericarp, 
and contains not more than 2.0 percent of sorghum of other classes. 
This class includes sorghum containing spots that, singly or in 
combination, cover 25.0 percent or less of the kernel.
* * * * *
    (h) Nongrain sorghum. Seeds of broomcorn, Johnson-grass, Sorghum 
almum Parodi, and sudangrass; and seeds of Sorghum bicolor (L.) Moench 
that appear atypical of grain sorghum.
* * * * *

0
6. Revise Sec.  810.1404 to read as follows:


Sec.  810.1404  Grades and grade requirements for sorghum.

------------------------------------------------------------------------
                                               Grades U.S. Nos. \1\
             Grading factors             -------------------------------
                                             1       2       3       4
------------------------------------------------------------------------
                         Minimum pound limits of
------------------------------------------------------------------------
Test weight per bushel..................    57.0    55.0    53.0    51.0
------------------------------------------------------------------------
                        Maximum percent limits of
------------------------------------------------------------------------
Damaged kernels:
    Heat (part of total)................     0.2     0.5     1.0     3.0
        Total...........................     2.0     5.0    10.0    15.0
Broken kernels and foreign material:
    Foreign material (part of total)....     1.0     2.0     3.0     4.0
        Total...........................     3.0     6.0     8.0    10.0
------------------------------------------------------------------------
                         Maximum count limits of
------------------------------------------------------------------------
Other material:
    Animal filth........................       9       9       9       9
        Castor beans....................       1       1       1       1
        Crotalaria seeds................       2       2       2       2
        Glass...........................       1       1       1       1
        Stones \2\......................       7       7       7       7
        Unknown foreign substance.......       3       3       3       3
        Cockleburs......................       7       7       7       7
        Total \3\.......................      10      10      10      10
------------------------------------------------------------------------
U.S. Sample grade is sorghum that:
    (a) Does not meet the requirements for U.S. Nos. 1, 2, 3, or 4; or
    (b) Has a musty, sour, or commercially objectionable foreign odor
     (except smut odor); or
    (c) Is badly weathered, heating, or distinctly low quality.
------------------------------------------------------------------------
\1\ Sorghum which is distinctly discolored shall not grade higher than
  U.S. No. 3.
\2\ Aggregate weight of stones must also exceed 0.2 percent of the
  sample weight.
\3\ Includes any combination of animal filth, castor beans, crotalaria
  seeds, glass, stones, unknown foreign substance or cockleburs.


David R. Shipman,
Acting Administrator, Grain Inspection, Packers and Stockyards 
Administration.
[FR Doc. 07-3554 Filed 7-19-07; 8:45 am]
BILLING CODE 3410-KD-P