65842 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

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: Proposed rule. 

SUMMARY: The Department of 

Agriculture (USDA) is seeking 

comments regarding the establishment 

of 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 

will mean all the above mentioned types 

of sorghum unless specifically 

identified otherwise. The proposed 

Order would be implemented under the 

Commodity Promotion, Research, and 

Information Act of 1996 (Act). The 

proposed Sorghum Promotion, 

Research, and Information Order (Order) 

would establish a national Sorghum 

Promotion, Research, and Information 

Board (Board) comprised initially of 13 

sorghum producers. Producers and 

importers would pay assessments based 

on the value of the sorghum they 

produce or import. A referendum would 

be conducted 3 years after assessments 

begin to determine if sorghum 

producers and importers favor the 

program. 

DATES: Comments must be received by 

January 22, 2008. Pursuant to the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35) (PRA), comments on the 

information collection burden that 

would result from this proposal must be 

received by January 22, 2008. 

ADDRESSES: Comments must be posted 

online at http://www.regulations.gov or 

sent to Kenneth R. Payne, Chief, 

Marketing Programs, Livestock and Seed 

Program, AMS, USDA, Room 2628–S, 

STOP 0251, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0251; Telephone: (202) 720–1115; Fax: 

(202) 720–1125. Comments will be 

made available for public inspection at 

the above address during regular 

business hours or via the Internet at 

http://www.regulations.gov. All 

comments should reference the docket 

number, Docket No. AMS–LS–07–0056; 

LS–07–02, the date, and the page 

number of this issue of the Federal 

Register. 

Pursuant to the PRA, send comments 

regarding the accuracy of the burden 

estimate; ways to minimize the burden, 

including the use of automated 

collection techniques or other forms of 

information technology; or any other 

aspect of this information collection to 

the above address. In addition, 

comments concerning the information 

collection also should be sent to the 

Desk Officer for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th St., 

NW., Room 725, Washington, DC 20503. 

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 

proposed Order is issued pursuant to 

the Act of 1996 (7 U.S.C. 7411–7425). 

Executive Order 12988 

This proposed 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 proposed 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 Statelegislated sorghum research and 

promotion programs. In accordance 

with the Act, this proposed rule would 

not preempt any of these State-legislated 

programs. Further, section 1221.112(j) of 

the proposed Order provides for an 

annual allocation to State programs 

based on the State’s proportional 

contribution of total assessments 

collected by the national program. 

In 2005 and 2006, representatives of 

the 6 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 promotion, research, 

and information 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 their proposal. 

Not only were the States informed 

throughout the development of the 

national program, they were 

instrumental in the sorghum industry’s 

decision to institute a national 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 producing States have 

expressed their support for the proposed 

Order—Kansas, Nebraska, Texas, and 

Oklahoma. New Mexico, a producer of 

grain sorghum and sorghum silage, has 

also expressed support. Within these 

States, the following organizations have 

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 proposed rule has been 

determined not significant for purposes 

of Executive Order 12866 and therefore 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65843 

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 the proposed 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 U.S. to 

maintain and expand existing markets 

and develop new markets and uses for 

agricultural commodities through 

industry-funded, Governmentsupervised, 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 proposed Order 

would impose certain reporting and 

recordkeeping requirements on persons 

subject to the Order, the information 

required under the proposed Order 

could generally be compiled from 

records currently maintained. 

Under the proposed Order, first 

handlers would remit assessments 

collected from producers to the Board. 

First handlers would 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 1221). Reporting forms would 

require the minimum information 

necessary to fulfill the intent of the Act. 

Such records and reports would be 

retained for 2 years beyond the fiscal 

year of their applicability. First handlers 

would 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 would have a reporting and 

recordkeeping burden. This burden 

relates to producers and importers who 

would 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 

proposed Order requires producers 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 would be 

required to regularly submit assessment 

and other related information to the 

Board. Information could 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 would be 

required to complete two forms that 

would be submitted to the Secretary. 

Any producer paying assessments 

could request a refund of assessments 

paid by submitting an application to the 

Board. Refunds would be made only if 

the program was not approved in 

referendum. 

With regard to imports of sorghum, 

U.S. Customs and Border Protection 

(Customs) would collect and remit 

assessments from importers to the 

Board. Customs would also provide 

information to the Board regarding the 

value and volume of imported sorghum, 

and therefore it is not anticipated that 

importers would have any regular 

reporting burden. The proposed Order 

would require 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 could be obtained through 

an audit of importers’ records to confirm 

information provided by Customs or as 

part of the Board’s compliance program. 

Importers would 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 would be considered 

first handlers under the proposed 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 would not be 

considered small businesses. 

Based upon data collected from State 

sorghum boards, NSP estimates that 

approximately 1,150 first handlers of 

grain sorghum could be affected. This 

number represents the number of 

wholesale grain merchants who buy 

grain sorghum out of the approximately 

3,000 wholesale grain merchants 

identified in the paragraph above. 

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 could be affected. This 

was determined through discussions 

with State sorghum promotions program 

representatives and State organizations 

representing sorghum producers. In 

order to have as much information as 

possible, we are inviting comments on 

the number and size of handlers of all 

types of sorghum that would be affected 

by this proposed Order. 

Under SBA criteria, importers of 

sorghum are considered agricultural 

service businesses. The proposed 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 

U.S., and the exact number of sorghum 

importers who would 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 initial 

Regulatory Flexibility Analysis, we 

therefore will assume that some 

importers would be 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 

mstockstill on PROD1PC66 with PROPOSALS2

65844 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

of the 2007 domestic grain sorghum 

crop. 

In order to have as much information 

as possible for a comprehensive analysis 

of sorghum importers, we are inviting 

comments regarding the importation, 

marketing, and uses of all types of 

imported sorghum. 

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 was 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 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 

proposed Order would be classified as 

small businesses. 

Sufficient data is 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. We are 

therefore inviting comments regarding 

the burden of assessments on all types 

of sorghum. 

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 were 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 

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 is not available to 

make a more accurate forecast of 

assessment collections on sorghum 

forage, sorghum hay, sorghum haylage, 

sorghum billets, and sorghum silage 

production. We therefore are also 

inviting comments regarding the 

production and value of all types of 

sorghum. 

In addition to sorghum first handlers, 

importers, and producers, there are 

other entities affected by the proposed 

Order. State, regional and national 

organizations representing sorghum 

producers and importers would have a 

role in the proposed Order. There would 

be some burden on producer 

organizations that voluntarily request to 

participate in the program by becoming 

certified to make nominations to the 

Board. AMS estimates that two 

organizations within each State would 

request certification. It is not known at 

this time how many sorghum producer 

organizations may wish to be certified. 

If this proposed Order is 

implemented, AMS would publish a 

notice in the Federal Register 

announcing that it would accept 

applications for certification of 

organizations to participate in the 

nomination of Board members pursuant 

to criteria in section 1221.107. Certified 

organizations would be required to resubmit applications for certification 

periodically. It is anticipated that this 

would occur every 5 years. 

Additionally, there would be a burden 

on 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 

would be qualified by the Secretary to 

receive funding from the Board and 

preference would be given to existing 

State legislated sorghum promotion 

organizations. Organizations would be 

required to submit an application for 

qualification to the Secretary pursuant 

to section 1221.128. It is estimated that 

one organization would be qualified per 

State although it is not required that 

each State have a qualified organization. 

Qualified organizations receiving 

funding through the Order would be 

required to re-submit applications for 

qualification periodically. It is 

anticipated that this would occur every 

5 years. 

While the exact number of certified 

and qualified organizations is not 

known, nonetheless their membership 

to a great extent would be producers 

who are largely small entities, and, 

when applicable, importers who we 

assume include small entities. 

With regard to alternatives to this 

proposed rule, the Act itself 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 proposal includes provisions for 

a delayed referendum. Approval would 

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. While we have performed this 

initial Regulatory Flexibility Analysis 

regarding the impact of this proposed 

Order on small entities, in order to 

obtain all the data necessary for a 

comprehensive analysis, we invite 

comments concerning potential effects 

of the proposed Order. In particular, we 

are seeking information on the number 

and size of first handlers, producers, 

and importers that would be covered by 

the program. We are also requesting 

information on certified and qualified 

organizations. In addition, we are 

interested in more information on the 

number and kind of small entities that 

may incur benefits or costs from 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65845 

implementation of the proposed Order 

and information on expected benefits or 

costs. 

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 

announces its intention to request 

approval for a new information 

collection for the proposed sorghum 

program. 

Under the proposed Order, first 

handlers would be required to collect 

assessments from producers, file reports 

with, and submit assessments to the 

Board. While the proposed Order would 

impose certain recordkeeping 

requirements on first handlers, 

information required under the 

proposed Order could be compiled from 

records currently maintained. Such 

records would be retained for at least 

two years beyond the marketing year of 

their applicability. Each first handler 

would be responsible for the collection 

of assessments and remittance of the 

assessments to the Board. It is 

anticipated that the bulk of assessments 

would be submitted to the Board by first 

handlers who purchase sorghum. A 

producer would be considered a first 

handler when that person markets 

sorghum of their own production 

directly to a consumer. 

The proposed Order’s provisions have 

been carefully reviewed, and every 

effort has been made to minimize any 

unnecessary recordkeeping costs or 

requirements. 

The proposed forms would require 

the minimum information necessary to 

effectively carry out the requirements of 

the proposed Order, and their use is 

necessary to fulfill the intent of the Act. 

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 would 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, the 

proposal uses $18.55, 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. 

Information collection requirements 

that are included in this proposal 

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 

Sorghum 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 × 

responses per respondent × $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 recordkeeper maintaining such 

records. 

Recordkeepers: Producers, importers, 

and first handlers. 

Estimated Number of Recordkeepers: 

35,050. 

Estimated Total Recordkeeping 

Hours: (Number of recordkeepers × 0.1 

hours) 3,502 hours. 

Total Cost: (Number of recordkeepers 

× 0.1 hour per recordkeeper × $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 

× total number of reports × 0.25 hour per 

report) 5,550 hours. 

Total Cost: (5,550 hours × $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: Six. 

Estimated Total Annual Burden: 

(8,300 producers × 6 reports per year × 

0.167 hour per report) 8,317 hours. 

Total Cost: (8,317 hours × $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 × 0.2 responses × 0.5 hour 

per response) 4.4 hours. 

Total Cost: (4.4 hours × $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: 

(one 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 × 0.2 responses × 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. 

mstockstill on PROD1PC66 with PROPOSALS2

65846 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

Estimated Number of Respondents: 

(certified organizations) 22. 

Estimated Number of Responses per 

Respondent: One per year. 

Estimated Total Annual Burden: (22 

organizations × 1 response × 0.5 hour 

per response) 11 hours. 

Total Cost: (11 hours × $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 × $18.55) $92.75. 

(9) Referendum Ballot. 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.1 hours 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 × $18.55) 

$3,079.30. 

Comments are 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. 

Comments concerning information 

collection should be sent to the address 

cited under the ADDRESSES section. 

Background 

NSP submitted a draft Sorghum 

Promotion, Research, and Information 

Order to USDA on December 28, 2006, 

along with letters of support from nine 

industry organizations. These letters 

represent producer organizations from 

five sorghum producing States, NSP, 

and the U.S. Grains Council. 

USDA has modified the proponent’s 

proposal to provide clarity, consistency, 

and correctness with respect to word 

usage and terminology. USDA also 

changed the proposal to make it 

consistent to other similar national 

research and promotion programs. 

According to NSP, a national 

promotion, research, and information 

program for sorghum would allow the 

industry to address a number of 

production and marketing problems it 

currently faces. Three main 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. A 

national promotion, research, and 

information program would address 

both of these concerns. 

The proposed Order would be based 

on value, so variability of funding 

would lessen. Also, the revenue 

generated by a national promotion, 

research, and information program 

would reach levels that could 

adequately fund large coordinated 

research programs in sorghum. 

NSP proposes that the 

implementation referendum be 

conducted within 3 years after 

assessments begin, which is consistent 

with the provisions of the Act. Approval 

would 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 would be administered 

by a 13-member Board appointed by the 

Secretary from industry nominations. 

The Board would recommend the 

assessment rate, programs and projects, 

budgets, and any rules and regulations 

that might be necessary for the 

administration of the program. The 

Board would 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 would 

serve as at-large representatives with at 

least two representatives appointed 

from States other than the top three 

sorghum producing States. 

Importers would 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 would 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 would recommend 

reapportionment of the Board 

membership. 

For the purpose of reapportionment 

under Section 1221.100 of the proposed 

Order, ‘‘production’’ means the total 

assessments collected by the Board 

during the last 5 crop years, excluding 

the high and low years. The key to 

understanding reapportionment in the 

proposed Order is the definition of 

production. The proposed Order in 

section 1221.100(f) specifically uses the 

term production and never refers to a 

quantity such as ‘‘bushels’’ harvested 

per acre. The intent of this was to use 

assessment collections as the basis for 

reapportionment and maintain a link to 

assessment collections. 

The proposed Order would use this 

definition since it reflects 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 would permit the 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65847 

1Frey, K.J. 1996. National plant breeding survey–

1. Iowa State Univ., Iowa Agr. and Home Econ. 

Expt. Stn. Spec. Rpt. 98. 

Board to analyze sorghum production in 

a consistent manner and base 

reapportionment decisions on a value as 

provided for in the Act. 

According to NASS, in 2005 the grain 

sorghum crop yielded 393.9 million 

bushels. Kansas was the largest 

producer at 195.0 million bushels, or 

49.5 percent of the total crop. The 2005 

grain sorghum crop was valued by 

NASS at $737 million dollars. 

Conversely, the 1984 grain sorghum 

crop was 866.2 million bushels. Kansas 

was the largest producer at 216.8 

million bushels, or 25.0 percent of the 

total crop. The 1984 grain sorghum crop 

was valued by NASS at $2.1 billion 

dollars. 

The sorghum silage crop in 2005 was 

4.2 million tons. Texas was the largest 

producer at 1.5 million tons, or 35.6 

percent of the total sorghum silage crop. 

Although NASS does not estimate the 

value of sorghum silage, at $18 per ton, 

the 2005 crop would be valued at $75.6 

million. The 1984 sorghum silage crop 

was 6.5 million tons. Kansas was the 

largest producer at 2.1 million tons, or 

32.3 percent of the total sorghum silage 

crop. Again, if the silage was valued at 

$18 per ton, the 1984 sorghum silage 

crop was worth $117.0 million. NASS 

sorghum silage estimates do not include 

the use of sorghum for haying or 

grazing. Acreage decline has also 

occurred during this period. In 1984, 

17.3 million acres were planted for grain 

sorghum and sorghum silage while in 

2005 only 6.5 million acres were 

planted. According to the NASS 2002 

Census of Agriculture, 33,200 farms 

reported growing grain sorghum as a 

crop for an average of 204 acres per 

farm. In the NASS 1997 Census of 

Agriculture, 50,860 farms reported 

growing grain sorghum as a crop for an 

average of 170 acres per farm. 

The U.S. is the largest exporter of 

grain sorghum in the world. Mexico and 

Japan are the largest customers. 

According to the December 11, 2006, 

World Agricultural Supply and Demand 

Estimates by USDA, in the 2006–2007 

marketing year, exports will be the 

single largest use of grain sorghum. The 

feed industry is the largest domestic 

market for grain sorghum. 

Grain sorghum is growing rapidly in 

industrial usage. Ethanol accounts for 

23 to 26 percent of domestic grain 

sorghum use. According to NSP, this is 

the fastest growing segment of use for 

grain sorghum resulting in new ethanol 

plants in western Kansas and the 

panhandle of Texas. While this is 

promising, research into starch 

availability and fermentation is 

significantly less in grain sorghum as 

compared to some other grains. A 

national promotion, research, and 

information program could invest in 

this type of research to keep grain 

sorghum as a viable alternative in 

current ethanol production systems. 

Additionally, NSP estimates there are 

approximately 3 million acres of forage 

type sorghum planted in the U.S. each 

year. There is no official data kept 

regarding actual production numbers. 

However, with the ever increasing price 

of energy worldwide, significant interest 

has surfaced in the use of forage 

sorghum as a feedstock for cellulosic 

ethanol production. While most of the 

Department of Energy research and 

focus is currently on crops like 

switchgrass and corn stubble, both U.S. 

and international research document 

that forage sorghum has a tremendous 

ability to produce large amounts of 

cellulosic material while utilizing much 

less water than many other plants. A 

national promotion, research, and 

information program could invest in 

this research and better position forage 

sorghum in the forefront of cellulosic 

ethanol production. 

Grain sorghum yield increases have 

lagged behind corn, soybeans, and 

cotton in annual increases. Much of the 

difference in yield increases among the 

crops can be attributed directly to 

limited technology investment related to 

sorghum production. According to NSP, 

the difference in per acre profitability 

between corn and sorghum is 

significant. Private industry, in order to 

maximize stockholder return on 

investment, is investing research dollars 

in corn, soybeans, and cotton, instead of 

sorghum. Additionally, a survey by 

Frey 1 documented that there are 545 

corn plant breeders including private, 

State, and USDA Agricultural Research 

Service (ARS) plant breeders. An NSP 

survey estimates that there are only 20 

sorghum plant breeders at the private, 

State, and ARS levels. Therefore, the 

proponents of the proposed Order 

identify this as an opportunity where a 

national program of promotion, 

research, and information, through 

investment in genetic research, could 

improve sorghum yields and expand 

markets for sorghum. 

Additional basic agricultural research 

opportunities exist for sorghum 

production. Several crops now have 

herbicides approved for use as over-thetop, postemergence grass control 

products. Sorghum production could 

benefit from this type of technology and 

a national promotion, research, and 

information program could fund the 

research needed to make this available 

for sorghum producers. 

The sorghum industry is facing 

competition in the marketplace from 

both indirect and direct competitors. 

Like all agricultural commodities, 

sorghum must compete for a share of 

customers’ dollars. On average, 

approximately 45 percent of U.S. grain 

sorghum production goes to the export 

market. The top foreign market for U.S. 

grain sorghum for the last ten years has 

been Mexico. Due to the passage of the 

North American Free Trade Agreement 

(NAFTA), beginning in 2008, U.S. corn 

will be allowed duty-free entry into 

Mexico. Currently, cracked corn is 

entering Mexico without tariff and has 

depressed grain sorghum imports into 

Mexico. When U.S. corn enters dutyfree into Mexico, industry analysts 

suggest that a significant portion of the 

U.S. grain sorghum crop will need an 

alternative market. This will lead to the 

need for greater investment in new 

market opportunities, domestically as 

well as internationally. This investment 

could come from a national promotion, 

research, and information program. 

According to NSP information, one 

key U.S. sorghum competitor is 

Australia. Australian farmers invest 1 

percent of the value producers receive 

for grain sorghum each year towards 

promotion and research, and the 

Australian government invests an 

additional amount equal to 0.6 percent 

of the value producers receive for grain 

sorghum for research and market 

development. This is an investment of 

1.6 percent of the value producers 

receive for grain sorghum. In contrast, 

all six of the current U.S. State grain 

sorghum checkoff programs, when 

combined, only account for 0.22 percent 

of value producers receive for grain 

sorghum. The USDA, through the ARS, 

invests 0.50 percent of the value 

producers receive for grain sorghum 

into sorghum research. U.S. investment 

of a total of 0.72 percent is less than half 

of the investment made by Australia. A 

national promotion, research, and 

information program could provide 

research into alternative uses for 

sorghum and help increase market 

share. 

The proposed Order would establish 

an assessment in section 1221.116 that 

would be paid by sorghum producers 

and importers. The assessment would 

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 U.S. and who 

owns or shares the ownership and risk 

of loss of the sorghum. 

mstockstill on PROD1PC66 with PROPOSALS2

65848 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

‘‘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 U.S. 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 U.S. for sale in 

the U.S., 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 would meet the 

requirement of the definition by buying 

more than the minimum amount of 

grain sorghum in a calendar year and 

therefore would 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 proposed 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 would collect and remit 

assessments to the Board. First handlers 

would 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 would be necessary so that 

the Board could make recommendations 

to USDA regarding reapportionment of 

its membership. 

Section 1221.119 of the proposed 

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, upon failure 

of the referendum would then have the 

right to receive from the Board a refund 

of assessments paid. Any producer or 

importer requesting a refund would 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) 

proposes an allocation of a portion of all 

assessments collected could be available 

to qualified State sorghum producer 

organizations. Each year the Board 

would 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 could be made 

available for use by qualified sorghum 

producer organizations pursuant to 

section 1221.128 for State programs of 

promotion, research, and information. 

Amounts allocated by the Board for 

State promotion, research, and 

information programs would 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 would not automatically 

receive a 15–25 percent allocation. The 

Board would establish each year that the 

qualified organizations would have to 

submit requests for the funds, which 

could be for no more than their 

allocated amount. A detailed marketing 

plan describing projects with budgets 

would be a part of this request to 

demonstrate that the allocation would 

be used in a way consistent with the 

Order. 

An example of how an allocation 

amount would 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 × 40 percent × 25 percent). 

The proposed 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 would 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 would then issue a certificate 

of exemption and the importers who 

receive a certificate of exemption would 

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 could be exempt 

from the payment of assessments. The 

producer or importer would submit the 

request to the Board annually as long as 

the producer continues to be eligible for 

the exemption. 

The proposed Order submitted by the 

proponent is summarized as follows 

with discussion of the provisions that 

were changed. 

Section 1221.1 through 1221.32 of the 

proposed Order defines certain terms 

such as sorghum, producer, importer, 

and first handler, which are used in the 

proposed Order. The term ‘‘unit’’ was 

removed as unnecessary from the 

definitions and section 1221.101 was 

amended to eliminate the use of the 

term. 

Section 1221.100 through 1221.111 

includes 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, power and duties, 

and prohibited activities. The Board is 

the governing body authorized to 

administer the Order through the 

implementation of programs, plans, 

projects, budgets, and contracts to 

promote and disseminate information 

about sorghum, subject to oversight of 

the Secretary. Section 1221.106, 

removal, was added to make the 

proposal consistent with similar orders 

and to express the Secretary’s authority 

to remove any person from the Board 

under certain circumstances. Section 

1221.107 was amended by adding 

paragraph (c) to express the primary 

considerations in determining the 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65849 

certification of an organization to 

nominate persons to serve on the Board. 

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 116 was amended to specify 

that if Customs does not collect an 

assessment form 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 amended 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. 

While the proposal set forth below 

has not received the approval of USDA, 

it is determined that the proposed Order 

is consistent with and will effectuate the 

purposes of the Act. 

List of Subjects in 7 CFR Part 1221 

Administrative practice and 

procedure, Advertising, Sorghum and 

Sorghum product, Consumer 

information, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, it is proposed that Chapter XI 

of Title 7 of the Code of Federal 

Regulations be amended to add Part 

1221 as follows: 

PART 1221–SORGHUM PROMOTION, 

RESEARCH, AND INFORMATION 

ORDER 

Subpart A—Sorghum Promotion, Research, 

and Information Order 

Definitions 

Sec. 

1221.1 Act. 

1221.2 Board. 

1221.3 Calendar year. 

1221.4 Certified organization. 

1221.5 Conflict of interest. 

1221.6 Crop year. 

1221.7 Customs. 

1221.8 Department. 

1221.9 First handler. 

1221.10 Fiscal period. 

1221.11 Handle. 

1221.12 Harvest. 

1221.13 Importer. 

1221.14 Information. 

1221.15 Market. 

1221.16 Net market price. 

1221.17 Net market value. 

1221.18 Order. 

1221.19 Part and subpart. 

1221.20 Person. 

1221.21 Producer. 

1221.22 Production. 

1221.23 Promotion. 

1221.24 Qualified sorghum producer 

organization. 

1221.25 Referendum. 

1221.26 Research. 

1221.27 Secretary. 

1221.28 Sorghum. 

1221.29 State. 

1221.30 Suspend. 

1221.31 Terminate. 

1221.32 United States. 

Sorghum Promotion, Research, and 

Information Board 

1221.100 Establishment and representation. 

1221.101 Nominations. 

1221.102 Nominee’s agreement to serve. 

1221.103 Appointment. 

1221.104 Term of office. 

1221.105 Vacancies. 

1221.106 Removal. 

1221.107 Certification of organizations. 

1221.108 Procedure. 

1221.109 Compensation and 

reimbursement. 

1221.110 Powers and duties. 

1221.111 Prohibited activities. 

Expenses and Assessments 

1221.112 Budget and expenses. 

1221.113 Financial statements. 

1221.114 Operating reserve. 

1221.115 Investment of funds. 

1221.116 Assessments. 

1221.117 Exemptions. 

1221.118 Refund escrow accounts. 

1221.119 Refunds. 

1221.120 Procedure for obtaining a refund. 

Promotion, Research, and Information 

1221.121 Programs, plans, and projects. 

1221.122 Independent evaluation. 

1221.123 Patents, copyrights, inventions, 

trademarks, information, publications, 

and product formulations. 

Reports, Books, and Records 

1221.124 Reports. 

1221.125 Books and records. 

1221.126 Use of information. 

1221.127 Confidential treatment. 

Qualification of Sorghum Producer 

Organizations 

1221.128 Qualification. 

Miscellaneous 

1221.129 Right of the Secretary. 

1221.130 Referenda. 

1221.131 Suspension or termination. 

1221.132 Proceedings after termination. 

1221.133 Effect of termination or 

amendment. 

1221.134 Personal liability. 

1221.135 Separability. 

1221.136 Amendments. 

1221.137 Rules and regulations. 

1221.138 OMB control numbers. 

Subparts B Through E—[Reserved] 

Authority: 7 U.S.C. 7411–7425. 

Subpart A—Sorghum Promotion, 

Research, and Information Order 

Definitions 

§ 1221.1 Act. 

Act means the Commodity Promotion, 

Research, and Information Act of 1996 

(7 U.S.C. 7411–7425), and any 

amendments thereto. 

§ 1221.2 Board. 

Board or Sorghum Promotion, 

Research, and Information Board means 

the administrative body established 

pursuant to § 1221.100, or such other 

name as recommended by the Board and 

approved by the Secretary. 

§ 1221.3 Calendar year. 

Calendar year means the 12-month 

period from January 1 through 

December 31. 

§ 1221.4 Certified organization. 

Certified organization means any 

organization that has been certified by 

the Secretary pursuant to this part as 

eligible to submit nominations for 

membership on the Board. 

§ 1221.5 Conflict of interest. 

Conflict of interest means a situation 

in which a representative or employee 

of the Board has a direct or indirect 

financial interest in a person or business 

that performs a service for, or enters into 

a contract with, the Board for anything 

of economic value. 

mstockstill on PROD1PC66 with PROPOSALS2

65850 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

§ 1221.6 Crop year. 

Crop year means the time period by 

which the USDA reports crop 

production for sorghum and is indicated 

by the calendar year in which sorghum 

is normally harvested. 

§ 1221.7 Customs. 

Customs means the U.S. Customs and 

Border Protection of the U.S. 

Department of Homeland Security. 

§ 1221.8 Department. 

Department means the United States 

Department of Agriculture or any officer 

or employee of the USDA to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated, to act in the Secretary’s stead. 

§ 1221.9 First handler. 

First handler means 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. In 

any case in which sorghum is pledged 

as collateral for a loan issued under any 

Commodity Credit Corporation price 

support loan program and the sorghum 

is forfeited by the producer in lieu of 

loan repayment, the Commodity Credit 

Corporation will be considered a first 

handler. 

§ 1221.10 Fiscal period. 

Fiscal period means the 12-month 

period ending on December 31 or such 

other consecutive 12-month period as 

shall be recommended by the Board and 

approved by the Secretary. 

§ 1221.11 Handle. 

Handle means to engage in the 

receiving or acquiring of sorghum and 

in the shipment (except as a common or 

contract carrier of sorghum owned by 

another) or sale of sorghum, or other 

activity causing sorghum to enter the 

current of commerce. 

§ 1221.12 Harvest. 

Harvest means combining or 

threshing sorghum for grain and/or 

severing the stalks from the land with 

mechanized equipment. 

§ 1221.13 Importer. 

Importer means 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. 

§ 1221.14 Information. 

Information means information and 

programs that are designed to develop 

new markets and marketing strategies; 

increase market efficiency; enhance the 

image of sorghum on a national or 

international basis; and assist producers 

in meeting their conservation objectives. 

These include, but are not exclusive to: 

(a) Consumer information, which 

means any action taken to provide 

information to, and broaden the 

understanding of, the general public 

regarding the consumption, use, 

nutritional attributes, and care of 

sorghum; 

(b) Industry information, which 

means information and programs that 

will lead to the development of new 

markets, new marketing strategies, or 

increased efficiency for the sorghum 

industry, and activities to enhance the 

image of the sorghum industry. 

§ 1221.15 Market. 

Market means to sell or otherwise 

dispose of sorghum into intrastate, 

interstate, or foreign commerce by 

buying, distributing, or otherwise 

placing sorghum into commerce. 

§ 1221.16 Net market price. 

Net market price means the sales 

price, or other value, per volumetric 

unit, received by a producer for 

sorghum after adjustments for any 

premium or discount. 

§ 1221.17 Net market value. 

Net market value means: 

(a) Except as provided in paragraph 

(b) of this section, the value found by 

multiplying the net market price by the 

appropriate quantity of the volumetric 

units or the minimum value in a 

production contract received by a 

producer for sorghum after adjustments 

for any premium or discount. 

(b) For imported sorghum, the total 

value paid by the importer for the 

sorghum as reported on the appropriate 

Customs form; or 

(c) For sorghum pledged as collateral 

for a loan issued under any Commodity 

Credit Corporation price support loan 

program, the principal amount of the 

loan. 

§ 1221.18 Order. 

Order means an order issued by the 

Secretary under section 514 of the Act 

that provides for a program of generic 

promotion, research, and information 

regarding agricultural commodities 

authorized under the Act. 

§ 1221.19 Part and subpart. 

Part means the Sorghum Promotion, 

Research, and Information Order and all 

rules, regulations, and supplemental 

orders issued pursuant to the Act and 

the Order. The Order shall be a subpart 

of such part. 

§ 1221.20 Person. 

Person means any individual, group 

of individuals, partnership, corporation, 

association, cooperative, or any other 

legal entity. 

§ 1221.21 Producer. 

Producer means 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. 

§ 1221.22 Production. 

Production, as used in § 1221.100, 

means: 

(a) For the purpose of establishing the 

initial Board in paragraphs (a), (b), (c), 

(d), and (e) of section 1221.100, the 

volume of grain sorghum produced 

during the last 5 crop years, excluding 

the high and low years, and 

(b) For the purpose of 

reapportionment in paragraphs (e) and 

(f) of section 1221.100, the total 

assessments collected by the Board 

during the last 5 crop years, excluding 

the high and low years. 

§ 1221.23 Promotion. 

Promotion means any action taken to 

present a favorable image of sorghum to 

the public and the end-user industry for 

the purpose of improving the 

competitive position of sorghum and 

stimulating the sale of sorghum. This 

includes paid advertising and public 

relations. 

§ 1221.24 Qualified sorghum producer 

organization. 

Qualified sorghum producer 

organization means a qualified Statelegislated sorghum promotion, research, 

and education commission or 

organization, approved by the Secretary. 

For States without a qualified Statelegislated sorghum promotion, research, 

and education commission or 

organization, qualified sorghum 

producer organization means any 

qualified organization that has the 

primary purpose of representing 

sorghum producers, has sorghum 

producers as members, and that is 

approved by the Secretary. 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65851 

§ 1221.25 Referendum. 

Referendum means a referendum 

conducted by the Secretary pursuant to 

the Act whereby producers and 

importers are provided the opportunity 

to vote to determine whether the 

continuance of this subpart is favored 

by a majority of eligible persons voting. 

§ 1221.26 Research. 

Research means any type of test, 

study, or analysis designed to advance 

the knowledge, image, desirability, use, 

marketability, production, product 

development, or quality of sorghum, 

including, but not limited to, research 

relating to yield, nutritional value, cost 

of production, new product 

development, inbred and hybrid 

development, nutritional value, health 

research, and marketing of sorghum. 

§ 1221.27 Secretary. 

Secretary means the Secretary of 

Agriculture of the United States, or any 

officer or employee of the Department to 

whom authority has heretofore been 

delegated, or to whom authority may 

hereafter be delegated, to act in the 

Secretary’s stead. 

§ 1221.28 Sorghum. 

Sorghum means any harvested 

portion of Sorghum bicolor (L.) Moench 

or any related species of the genus 

Sorghum of the family Poaceae. This 

includes, but is not limited to, grain 

sorghum (including hybrid sorghum 

seeds, inbred sorghum line seed, and 

sorghum cultivar seed), sorghum forage, 

sorghum hay, sorghum haylage, 

sorghum billets, and sorghum silage. 

§ 1221.29 State. 

State means any of the 50 States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, or any 

territory or possession of the United 

States. 

§ 1221.30 Suspend. 

Suspend means to issue a rule under 

section 553 of title 5, U.S.C., to 

temporarily prevent the operation of an 

order or part thereof during a particular 

period of time specified in the rule. 

§ 1221.31 Terminate. 

Terminate means to issue a rule under 

section 553 of title 5, U.S.C., to cancel 

permanently the operation of an order 

or part thereof beginning on a certain 

date specified in the rule. 

§ 1221.32 United States. 

United States or U.S. means 

collectively the 50 States, the District of 

Columbia, the Commonwealth of Puerto 

Rico, and the territories and possessions 

of the United States. 

Sorghum Promotion, Research, and 

Information Board 

§ 1221.100 Establishment and 

representation. 

There is hereby established a 

Sorghum Promotion, Research, and 

Information Board, hereinafter called 

the Board. Representation includes, but 

is not limited to, fixed State seats 

determined by total production with atlarge seats to allow representation from 

a broad geographical area. The Board 

shall initially be composed of 13 

representatives, with the maximum 

number of producers from one State 

limited to 6, appointed by the Secretary 

from nominations as follows: 

(a) The largest production State based 

on total production shall have 5 

sorghum producers to serve as 

representatives. 

(b) The second largest production 

State based on total production shall 

have 3 sorghum producers to serve as 

representatives. 

(c) The third largest production State 

based on total production shall have one 

sorghum producer to serve as a 

representative. 

(d) There shall be 4 sorghum 

producers to serve as at-large national 

representatives with at least two 

representatives appointed from States 

not described in paragraphs (a), (b), and 

(c) of this section. 

(e) If the value of assessments on 

imported sorghum reaches or exceeds 

the production of the third largest 

sorghum producing State, there shall be 

one importer to serve as a representative 

plus an additional at-large national 

representative, with the maximum 

number of producers from one State 

being increased from six to seven. 

(f) At least once every 5 years, the 

Board will review the geographical 

distribution of production of sorghum in 

the United States, the production of 

sorghum in the United States, and the 

value of assessments on sorghum 

imported into the United States. The 

review will be based on Board 

assessment records and statistics from 

the Department. If warranted, the Board 

may recommend to the Secretary that 

representation on the Board be altered 

to reflect any changes in geographical 

distribution of domestic sorghum 

production. If, in the review, the Board 

determines that the value of assessments 

on sorghum imported into the United 

States exceeds 15 percent of the 

production of sorghum, the Board shall 

recommend to the Secretary that the 

nomination procedures and 

appointments to the Board be altered as 

necessary or appropriate to facilitate the 

equitable representation of importers on 

the Board. 

§ 1221.101 Nominations. 

All nominations authorized under 

this section shall be made in the 

following manner: 

(a) Nominations for State-specific and 

at-large national seats shall be obtained 

by the Secretary from eligible 

organizations certified under 

§ 1221.107. Certified eligible 

organizations representing producers in 

a State, or when making nominations for 

at-large seats, shall submit to the 

Secretary at least two nominees for each 

vacant seat. If the Secretary determines 

that a State is not represented by a 

certified eligible organization, then the 

Secretary may solicit nominations from 

other organizations or other persons 

residing in the State. 

(b) If so required pursuant to 

§ 1221.100(f), at least two nominations 

for the importer representative shall be 

submitted by the Board to the Secretary. 

(c) After the establishment of the 

initial Board, the Secretary shall 

announce when a vacancy does or will 

exist. Nominations for subsequent Board 

representatives shall be submitted to the 

Secretary not less than 90 days prior to 

the expiration of the terms of the 

representatives whose terms are 

expiring, in the manner as described in 

this section. In the case of vacancies due 

to reasons other than the expiration of 

a term of office, successor Board 

members shall be appointed pursuant to 

section 1221.105. 

(d) When there is more than one 

certified eligible organization 

representing a State or when the 

Secretary solicits nominations from 

organizations and persons residing in 

that State, or when eligible certified 

organizations are nominating persons 

for at-large positions, eligible certified 

organizations may caucus and jointly 

nominate two qualified producers for 

each position on the Board for which a 

representative is to be appointed. If joint 

agreement is not reached with respect to 

any such nominations, or if no caucus 

is held, each eligible organization may 

submit to the Secretary two nominees 

for each appointment to be made to 

represent that State, or to fill an at-large 

position. 

§ 1221.102 Nominee’s agreement to serve. 

Any producer or person nominated to 

serve on the Board shall file with the 

Secretary at the time of the nomination 

a written agreement to: 

(a) Serve on the Board if appointed; 

(b) Disclose any relationship with any 

sorghum promotion entity or with any 

organization that has or is being 

mstockstill on PROD1PC66 with PROPOSALS2

65852 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

considered for a contractual relationship 

with the Board; and 

(c) Withdraw from participation in 

deliberations, decision-making, or 

voting on matters that concern the 

relationship disclosed under paragraph 

(b) of this section. 

§ 1221.103 Appointment. 

From the nominations made pursuant 

to § 1221.101, the Secretary shall 

appoint the representatives of the Board 

on the basis of representation provided 

in § 1221.100. 

§ 1221.104 Term of office. 

(a) The term of office for the 

representatives of the Board shall be 

three years, except for the initial term, 

pursuant to paragraph (c) of this section. 

(b) Representatives may serve a 

maximum of 2 consecutive 3-year terms. 

(c) When the Board is first 

established, the Secretary shall establish 

staggered terms as follows: 

(1) Largest Producing State—2 

representatives shall serve a 2-year term, 

1 representative shall serve a 3-year 

term, and 2 representatives shall serve 

a 4-year term. 

(2) Second Largest Producing State—

1 representative shall serve a 2-year 

term, 1 representative shall serve a 3- 

year term, and 1 representative shall 

serve a 4-year term. 

(3) Third Largest Producing State—

The representative shall serve a 3-year 

term. 

(4) At-large national—1 representative 

shall serve a 2-year term, 2 

representatives shall serve a 3-year term, 

and 1 representative shall serve a 4-year 

term. 

(5) States with multiple 

representatives shall have the staggered 

terms assigned by the Secretary. 

(6) Representatives serving initial 

terms of 2 or 4 years shall be eligible to 

serve a single term of 3 years after their 

initial 2 or 4 year term. 

(d) Each representative shall continue 

to serve until a successor is appointed 

by the Secretary and has accepted the 

position. 

(e) Any successor appointed pursuant 

to § 1221.105 serving 1 year or less may 

serve two consecutive 3 year terms. 

§ 1221.105 Vacancies. 

To fill any vacancy occasioned by the 

death, removal, resignation, or 

disqualification of any member of the 

Board, a successor for the unexpired 

term of such representative shall be 

appointed by the Secretary pursuant to 

§ 1221.103 from the most recent list of 

nominations for the position pursuant to 

§ 1221.101 or the Secretary shall request 

nominations for a successor pursuant to 

§ 1221.101, except that said nomination 

and replacement shall not be required if 

an unexpired term is less than 6 

months. 

§ 1221.106 Removal. 

If the Secretary determines that any 

person appointed under this part fails or 

refuses to perform his or her duties 

properly or engages in act of dishonesty 

or willful misconduct, the Secretary 

shall remove the person from office. A 

person appointed under this part or any 

employee of the Board may be removed 

by the Secretary if the Secretary 

determines that the person’s continued 

service would be a detriment to the 

purposes of the Act. 

§ 1221.107 Certification of organizations. 

(a) The eligibility of State, regional, or 

national organizations to participate in 

making nominations for membership on 

the Board shall be certified by the 

Secretary. Those organizations that may 

seek certification include: 

(1) State-legislated sorghum 

promotion, research, and information 

organizations; 

(2) Organizations whose primary 

purpose is to represent sorghum 

producers within a State, region, or at 

the national level; or, 

(3) Organizations that have sorghum 

producers as members; 

(b) Such eligibility shall be based, in 

addition to other information, upon a 

report submitted by the organization 

that shall contain information deemed 

relevant and specified by the Secretary 

for the making of such determination, 

including the following: 

(1) The geographic territory covered 

by the organization’s active 

membership; 

(2) The nature and size of the 

organization’s active membership, 

proportion of active membership 

accounted for by producers, a map 

showing the sorghum producing 

counties in which the organization has 

active members, the volume of sorghum 

produced in each such county, the 

number of sorghum producers in each 

such county, and the size of the 

organization’s active sorghum producer 

membership in each such county; 

(3) The extent to which the sorghum 

producer membership of such 

organization is represented in setting 

the organization’s policies; 

(4) Evidence of stability and 

permanency of the organization; 

(5) Sources from which the 

organization’s operating funds are 

derived; 

(6) The functions of the organization; 

and 

(7) The ability and willingness of the 

organization to further the purpose and 

objectives of the Act. 

(c) The primary consideration in 

determining the eligibility of an 

organization shall be whether its 

sorghum producer membership consists 

of a sufficiently large number of 

sorghum producers who produce a 

relatively significant volume of sorghum 

to reasonably warrant its participation 

in the nomination of State specific and 

national at-large members to the Board. 

Any sorghum producer organization 

found eligible by the Secretary under 

this section shall be certified by the 

Secretary, and the Secretary’s 

determination as to eligibility shall be 

final. 

§ 1221.108 Procedure. 

(a) At a Board meeting, it will be 

considered a quorum when a simple 

majority of the voting representatives 

are present. 

(b) At the start of each fiscal period, 

the Board will approve a chairperson, 

vice chairperson, and secretary/ 

treasurer who will conduct meetings 

throughout that period. 

(c) All Board representatives and the 

Secretary or the Secretary’s designee 

will be notified at least 30 days in 

advance of all Board and committee 

meetings, unless an emergency meeting 

is declared. 

(d) Each voting representative of the 

Board will be entitled to one vote on 

any matter put to the Board, and the 

motion will carry if supported by a 

simple majority of the total votes of the 

Board representatives present at the 

meeting. 

(e) It will be considered a quorum at 

a committee meeting when a simple 

majority of those assigned to the 

committee are present at the meeting. 

Committees may consist of individuals 

other than Board representatives, and 

such individuals may vote in committee 

meetings. Committee members shall 

serve without compensation but shall be 

reimbursed for reasonable travel 

expenses, as approved by the Board. 

(f) In lieu of voting at a properly 

convened meeting and, when in the 

opinion of the chairperson of the Board 

such action is considered necessary, the 

Board may take action if supported by 

a simple majority of the Board 

representatives by mail, telephone, 

electronic mail, facsimile, or any other 

means of communication. In that event, 

all representatives must be notified and 

provided the opportunity to vote. Any 

action so taken shall have the same 

force and effect as though such action 

had been taken at a properly convened 

meeting of the Board. All telephone 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65853 

votes shall be confirmed promptly in 

writing. All votes shall be recorded in 

Board minutes. 

(g) There shall be no voting by proxy. 

(h) The chairperson shall be a voting 

representative. 

(i) The organization of the Board and 

the procedures for conducting meetings 

of the Board shall be in accordance with 

its bylaws, which shall be established 

by the Board and approved by the 

Secretary. 

§ 1221.109 Compensation and 

reimbursement. 

The representatives of the Board shall 

serve without compensation but shall be 

reimbursed for reasonable travel 

expenses, as approved by the Board, 

incurred by them in the performance of 

their duties as Board representatives. 

§ 1221.110 Powers and duties. 

The Board shall have the following 

powers and duties: 

(a) To administer the Order in 

accordance with its terms and 

conditions and to collect assessments; 

(b) To develop and recommend to the 

Secretary for approval such bylaws as 

may be necessary for the functioning of 

the Board, and such rules as may be 

necessary to administer the Order, 

including activities authorized to be 

carried out under the Order; 

(c) To meet not less than annually, 

and organize, and select from among the 

representatives of the Board a 

chairperson, other officers, committees, 

and subcommittees, as the Board 

determines appropriate; 

(d) To employ persons, other than the 

representatives, as the Board considers 

necessary to assist the Board in carrying 

out its duties and to determine the 

compensation and specify the duties of 

such persons; 

(e) To develop programs, plans, and 

projects, and enter into contracts or 

agreements, which must be approved by 

the Secretary before becoming effective, 

for the development and carrying out of 

programs or projects of research, 

information, or promotion, and the 

payment of costs thereof with funds 

collected pursuant to this subpart. Each 

contract or agreement shall provide that: 

any person who enters into a contract or 

agreement with the Board shall develop 

and submit to the Board a proposed 

activity; keep accurate records of all of 

its transactions relating to the contract 

or agreement; account for funds 

received and expended in connection 

with the contract or agreement; make 

periodic reports to the Board of 

activities conducted under the contract 

or agreement; and, make such other 

reports available as the Board or the 

Secretary considers relevant. 

Furthermore, any contract or agreement 

shall provide that: 

(1) The contractor or agreeing party 

shall develop and submit to the Board 

a program, plan, or project together with 

a budget or budgets that shall show the 

estimated cost to be incurred for such 

program, plan, or project; 

(2) The contractor or agreeing party 

shall keep accurate records of all its 

transactions and make periodic reports 

to the Board of activities conducted, 

submit accounting for funds received 

and expended, and make such other 

reports as the Secretary or the Board 

may require; 

(3) The Secretary may audit the 

records of the contracting or agreeing 

party periodically; and 

(4) Any subcontractor who enters into 

a contract with a Board contractor and 

who receives or otherwise uses funds 

allocated by the Board shall be subject 

to the same provisions as the contractor. 

(f) To prepare and submit for approval 

of the Secretary fiscal period budgets in 

accordance with § 1221.112; 

(g) To maintain such records and 

books and prepare and submit such 

reports and records from time to time to 

the Secretary as the Secretary may 

prescribe; to make appropriate 

accounting with respect to the receipt 

and disbursement of all funds entrusted 

to it; and to keep records that accurately 

reflect the actions and transactions of 

the Board; 

(h) To cause its books to be audited 

by a competent auditor at the end of 

each fiscal period and at such other 

times as the Secretary may request, and 

to submit a report of the audit directly 

to the Secretary; 

(i) To give the Secretary the same 

notice of Board and committee meetings 

as is given to representatives in order 

that the Secretary’s representative(s) 

may attend such meetings; 

(j) To act as intermediary between the 

Secretary and any producer, first 

handler or importer; 

(k) To furnish to the Secretary any 

information or records that the Secretary 

may request; 

(l) To receive, investigate, and report 

to the Secretary complaints of violations 

of the Order; 

(m) To recommend to the Secretary 

such amendments to the Order as the 

Board considers appropriate; and with 

the approval of the Secretary, to make 

rules and regulations to effectuate the 

terms and provisions of this subpart; 

(n) To work to achieve an effective, 

continuous, and coordinated program of 

promotion, research, consumer 

information, evaluation, and industry 

information designed to strengthen the 

sorghum industry’s position in the 

marketplace; maintain and expand 

existing markets and uses for sorghum; 

and to carry out programs, plans, and 

projects designed to provide maximum 

benefits to the sorghum industry; 

(o) To provide not less than annually 

a report to producers and importers 

accounting for the funds expended by 

the Board, and describing programs 

implemented under the Act; and to 

make such report available to the public 

upon request; and 

(p) To invest funds in accordance 

with § 1221.115. 

§ 1221.111 Prohibited activities. 

The Board may not engage in, and 

shall prohibit the employees and agents 

of the Board from engaging in: 

(a) Any action that is a conflict of 

interest; 

(b) Using funds collected by the Board 

under the Order to undertake any action 

for the purpose of influencing 

legislation or governmental action or 

policy, by local, State, national, and 

foreign governments, other than 

recommending to the Secretary 

amendments to this part; and 

(c) Any advertising, including 

promotion, research, and information 

activities authorized to be carried out 

under the Order that is false or 

misleading or disparaging to another 

agricultural commodity. 

Expenses and Assessments 

§ 1221.112 Budget and expenses. 

(a) Prior to the beginning of each 

fiscal period, and as may be necessary 

thereafter, the Board shall prepare and 

submit to the Secretary a budget for the 

fiscal period covering its anticipated 

expenses and disbursements in 

administering this subpart. Each such 

budget shall include: 

(1) A statement of objectives and 

strategy for each program, plan, or 

project; 

(2) A summary of anticipated revenue, 

with comparative data for at least one 

preceding year (except for the initial 

budget); 

(3) A summary of proposed 

expenditures for each program, plan, or 

project; and 

(4) Staff and administrative expense 

breakdowns, with comparative data for 

at least one preceding year (except for 

the initial budget). 

(b) Each budget shall provide 

adequate funds to defray its proposed 

expenditures and to provide for a 

reserve as set forth in this subpart. 

(c) Subject to this section, any 

amendment or addition to an approved 

budget that increases the budget must be 

approved by the Secretary. Shifts of 

mstockstill on PROD1PC66 with PROPOSALS2

65854 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

funds that do not result in an increase 

in the Board’s approved budget and that 

are consistent with this subpart and the 

Board’s governing bylaws need not have 

prior approval by the Secretary. 

(d) The Board is authorized to incur 

such expenses, including provision for 

a reasonable reserve, as the Secretary 

finds are reasonable and likely to be 

incurred by the Board for its 

maintenance and functioning, and to 

enable it to exercise its powers and 

perform its duties in accordance with 

the provisions of this subpart. Such 

expenses shall be paid from funds 

received by the Board. 

(e) With approval of the Secretary, the 

Board may borrow money for the 

payment of administrative expenses, 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Board. Any funds borrowed by the 

Board shall be expended only for 

startup costs and capital outlays and are 

limited to the first fiscal period of 

operation of the Board. 

(f) The Board may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred in the 

conduct of programs, plans, and projects 

in accordance with the Order. Such 

contributions shall be free from any 

encumbrance by the donor and the 

Board shall retain complete control of 

their use. 

(g) In accordance with § 1221.118(a), 

the Board shall deposit funds in a 

refund escrow account and refrain from 

allocating this amount for expenditure 

until the Order is approved by the 

required referendum except as provided 

for in § 1221.118. 

(h) The Board shall allocate an 

appropriate amount each year to allow 

for payment of future referendums. 

(i) The Board shall reimburse the 

Secretary for all expenses incurred by 

the Secretary in the implementation, 

administration, and supervision of the 

Order, including all referendum costs in 

connection with the Order. 

(j) The Board shall determine 

annually an allocation amount 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 

pursuant to paragraph (i) of this section, 

for use by qualified sorghum producer 

organizations pursuant to § 1221.128 for 

State programs of promotion, research, 

and information. Amounts allocated by 

the Board for State promotion, research, 

and information programs will be based 

on requests submitted to the Board by 

qualified sorghum producer 

organizations when it is determined that 

these requests meet the goals and 

objectives stated in the Order. Qualified 

sorghum producer organizations shall 

not submit requests for State promotion, 

research, and information programs that 

exceed the annual allocation amount 

determined by the Board which shall be 

the product of: 

(1) The State’s proportional 

contribution based on reports submitted 

by first handlers pursuant to 

§ 1221.124(a) to total assessments 

remitted on all sorghum for the previous 

fiscal period; multiplied by 

(2) The total assessments collected on 

all sorghum for the previous fiscal 

period less expenses pursuant to 

paragraph (i) of this section. 

(k) The Board may not expend for 

administration, maintenance, and 

functioning of the Board in any fiscal 

period an amount that exceeds 10 

percent of the assessments and other 

income received by the Board for that 

fiscal period except for the initial fiscal 

period. Reimbursements to the Secretary 

required under paragraph (i) of this 

section are excluded from this 

limitation on spending. 

(l) The Board shall allocate all other 

funds available for any fiscal period, to 

the extent practicable pursuant to 

paragraphs (g), (h), (i), (j), and (k) of this 

section on national, regional, multiState, and State promotion, research, 

and information programs. Amounts 

allocated by the Board for national, 

regional, multi-State, and State 

promotion, research, and information 

programs will be based on requests 

submitted to the Board when it is 

determined that these requests meet the 

goals and objectives stated in the Order. 

(m) The Board shall determine 

annually the allocation of total funds 

pursuant to this section, with the 

approval of the Secretary. 

§ 1221.113 Financial statements. 

(a) As requested by the Secretary, the 

Board shall prepare and submit 

financial statements to the Secretary on 

a monthly basis. Each such financial 

statement shall include, but not be 

limited to, a balance sheet, income 

statement, and expense budget. The 

expense budget shall show expenditures 

during the time period covered by the 

report, fiscal period-to-date 

expenditures, and the unexpended 

budget. 

(b) Each financial statement shall be 

submitted to the Secretary within 30 

days after the end of the time period to 

which it applies. 

(c) The Board shall submit annually to 

the Secretary an annual financial 

statement within 90 days after the end 

of the fiscal period to which it applies. 

§ 1221.114 Operating reserve. 

The Board may establish an operating 

monetary reserve and may carry over to 

subsequent fiscal period excess funds in 

a reserve so established; provided, that 

funds in the reserve shall not exceed 

one fiscal period’s anticipated expenses. 

§ 1221.115 Investment of funds. 

The Board may invest, pending 

disbursement, funds it receives under 

this subpart, only in obligations of the 

United States or any agency of the 

United States; general obligations of any 

State or any political subdivision of a 

State; interest bearing accounts or 

certificates of deposit of financial 

institutions that are members of the 

Federal Reserve system; or obligations 

that are fully guaranteed as to principal 

and interest by the United States. 

§ 1221.116 Assessments. 

(a) The funds to cover the Board’s 

expenses shall be paid from assessments 

on producers and importers, donations 

from any person not subject to 

assessments under this Order, and other 

funds available to the Board and subject 

to the limitations contained therein. 

(b) First handlers of domestic 

sorghum shall be responsible for 

collecting assessments from producers 

on all domestically handled sorghum. 

This includes sorghum of the first 

handler’s own production. Grain 

pledged as collateral for a Commodity 

Credit Corporation price support loan 

program shall be considered handled 

sorghum. A first handler shall not 

collect an assessment on sorghum from 

a producer when said producer presents 

documentation demonstrating that an 

assessment has previously been 

collected on said sorghum. 

(c) The following assessment rates for 

sorghum shall apply: 

(1) Grain sorghum shall be initially 

assessed at a rate of 0.6 percent of net 

market value received by the producer 

with a maximum modification of 1 

percent pursuant to paragraph (e) of this 

section; and 

(2) Sorghum forage, sorghum hay, 

sorghum haylage, sorghum billets, and 

sorghum silage shall be initially 

assessed at a rate of 0.35 percent of net 

market value received by the producer 

with a maximum modification of 1 

percent pursuant to paragraph (e) of this 

section. 

(d) Importers of sorghum shall pay an 

assessment to the Board through 

Customs on sorghum imported into the 

United States. The following apply to 

imported sorghum: 

(1) The assessment rates for imported 

sorghum shall be the same or equivalent 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65855 

to the rates for sorghum produced in the 

United States. 

(2) The import assessment shall be 

uniformly applied to imported sorghum 

that is identified by the numbers 

1007.00.0020 and 1007.00.0040 in the 

Harmonized Tariff Schedule of the 

United States. 

(3) The assessments due on imported 

sorghum shall be paid when the 

sorghum enters the United States. 

(4) If Customs does not collect an 

assessment from an importer, the 

importer is responsible for paying the 

assessment to the Board. 

(e) The Board will review the 

assessment rates and may make 

recommendations to modify the 

assessment rates to the Secretary. 

Assessment rates may be raised or 

lowered no more than 0.2 percent of net 

market value received by the producer 

in any one calendar year. 

(f) Each person responsible for 

collecting assessments under paragraph 

(b) of this section shall remit the amount 

due to the Board in such a manner as 

required by regulations recommended 

by the Board and prescribed by the 

Secretary. 

(g) Any unpaid assessment due to the 

Board pursuant to this section shall be 

increased 2 percent each month 

beginning with the day following the 

date such assessments were due. Any 

remaining amount due, which shall 

include any unpaid charges previously 

made pursuant to this paragraph, shall 

be increased at the same rate on the 

corresponding day of each month 

thereafter until paid. For the purposes of 

this paragraph, any assessment 

determined at a later date than the date 

prescribed by this subpart because of a 

person’s failure to timely submit a 

report to the Board shall be considered 

to have been payable by the date it 

would have been due if the report had 

been filed timely. The timeliness of a 

payment to the Board shall be based on 

the applicable postmark date or the date 

actually received by the Board. 

(h) An additional charge shall be 

imposed on any person subject to a late 

payment charge in the form of interest 

on the outstanding portion of any 

amount for which the person is liable. 

The rate of interest shall be prescribed 

by the Secretary. 

(i) Persons failing to remit total 

assessments due in a timely manner 

may also be subject to actions under 

Federal debt collection procedures. 

(j) The Board may authorize other 

organizations to collect assessments on 

its behalf with the approval of the 

Secretary. 

(k) The collection of assessments 

pursuant to this section shall begin with 

respect to sorghum handled on or after 

the effective date established by the 

Secretary and shall continue until 

terminated or suspended by the 

Secretary. 

(l) If the Board is not in place by the 

date the first assessments are to be 

collected, the Secretary shall have the 

authority to receive assessments and 

invest them on behalf of the Board, and 

shall pay such assessments and any 

interest earned to the Board when it is 

formed. The Secretary shall have the 

authority to promulgate rules and 

regulations concerning assessments and 

the collection of assessments, if the 

Board is not in place or is otherwise 

unable to develop such rules and 

regulations. 

(m) Payment remitted pursuant to this 

subpart shall be in the form of a 

negotiable instrument made payable to 

the Board. Such remittances and the 

reports specified in § 1221.124 and 

§ 1221.125 shall be mailed to the 

location designated by the Board. 

§ 1221.117 Exemptions. 

(a) 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 

§ 1221.116. 

(b) An importer desiring an 

exemption shall apply to the Board, on 

a form provided by the Board, for a 

certificate of exemption. An importer 

shall certify that the importer will 

import 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. 

(c) Upon receipt of an application, the 

Board shall determine whether an 

exemption may be granted. The Board 

then will issue, if deemed appropriate, 

a certificate of exemption to each person 

who is eligible to receive one. It is the 

responsibility of these persons to retain 

a copy of the certificate of exemption. 

(d) Importers who receive a certificate 

of exemption shall be eligible for 

reimbursement of assessments collected 

by Customs. These importers shall 

apply to the Board for reimbursement of 

any assessments paid. No interest will 

be paid on the assessments collected by 

Customs. Requests for reimbursement 

shall be submitted to the Board within 

90 days of the last day of the calendar 

year the sorghum was actually 

imported. 

(e) Any person who desires an 

exemption from assessments for a 

subsequent calendar year shall reapply 

to the Board, on a form provided by the 

Board, for a certificate of exemption. 

(f) 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. 

(g) A producer or importer who 

operates under an approved National 

Organic Program (NOP) (7 CFR part 205) 

system plan; produces or imports only 

products that are eligible to be labeled 

as 100 percent organic under the NOP, 

except as provided for in paragraph (m) 

of this section; and is not, or does not 

import products from, a split operation 

shall be exempt from the payment of 

assessments. 

(h) To apply for an exemption under 

this section, the applicant shall submit 

the request to the Board or other party 

as designated by the Board, on a form 

provided by the Board, at any time 

initially and annually thereafter on or 

before January 1 as long as the applicant 

continues to be eligible for the 

exemption. 

(i) The request shall include the 

following: the applicant’s name and 

address, a copy of the organic farm or 

organic handling operation certificate 

provided by a USDA accredited 

certifying agent as defined in section 

2103 of the Organic Foods Production 

Act of 1990 (7 U.S.C. 6502), a signed 

certification that the applicant meets all 

of the requirements specified for an 

assessment exemption, and such other 

information as may be required by the 

Board and with the approval of the 

Secretary. 

(j) If the applicant complies with the 

requirements of this section, the Board 

or designee will grant the exemption 

and issue a Certificate of Exemption to 

the applicant. The Board will have 30 

days from the date of receiving the 

request to approve the exemption 

request. If the application is 

disapproved, the Board will notify the 

applicant of the reason(s) for 

disapproval within the same timeframe. 

(k) The producer or importer shall 

provide a copy of the Certificate of 

Exemption to each first handler. The 

first handler shall maintain records 

showing the name and address of the 

exempt producer or importer and the 

exemption number assigned by the 

Board. 

(l) The exemption will apply at the 

first reporting period following the 

issuance of the exemption. 

(m) Agricultural commodities 

produced and marketed under an 

organic system plan, as described in 7 

CFR 205.201, but not sold, labeled, or 

represented as organic, shall not 

mstockstill on PROD1PC66 with PROPOSALS2

65856 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

disqualify a producer or importer from 

exemption under this section, except 

that producers or importers who 

produce or import both organic and 

non-organic agricultural commodities as 

a result of split operations shall not 

qualify for exemption. Reasons for 

conventional sales include lack of 

demand for organic products, isolated 

use of antibiotics for humane purposes, 

chemical or pesticide use as the result 

of State or emergency spray programs, 

and crops from a buffer area as 

described in 7 CFR part 205, provided 

all other criteria are met. 

§ 1221.118 Refund escrow accounts. 

(a) The Board shall establish an 

interest bearing escrow account with a 

financial institution that is a member of 

the Federal Reserve System and will 

deposit into such account an amount 

equal to the product obtained by 

multiplying the total amount of 

assessments collected by the Board 

during the period beginning on the 

effective date of the Order and ending 

on the date the Secretary announces the 

results of the required referendum by 

ten percent (10 percent). 

(b) Upon failure of the required 

referendum, the Board shall pay refunds 

of assessments to eligible persons 

requesting refunds during the period 

beginning on the effective date of the 

Order and ending on the date the 

Secretary announces the results of the 

required referendum in the manner 

specified in paragraph (c) of this 

section. 

(c) If the amount deposited in the 

escrow account is less than the amount 

of refunds requested, the Board shall 

prorate the amount deposited in such 

account among all eligible persons who 

request a refund of assessments paid no 

later than 90 days after the required 

referendum results are announced by 

the Secretary. 

(d) If the Order is approved by the 

required referendum conducted under 

§ 1121.130 then: 

(1) The escrow account shall be 

closed; and 

(2) The funds shall be available to the 

Board for disbursement under 

§ 1221.112. 

§ 1221.119 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, under authority of 

the Act and this subpart through the 

announcement of the results of the 

required referendum, upon failure of the 

required referendum shall have the right 

to receive from the Board a refund of 

such assessment, or a prorated share 

thereof, upon submission of proof 

satisfactory to the Board that the 

producer or importer paid the 

assessment for which refund is sought. 

Any such demand shall be made by 

such producer or importer in 

accordance with the provisions of this 

subpart and in a manner consistent with 

regulations recommended by the Board 

and prescribed by the Secretary. 

§ 1221.120 Procedure for obtaining a 

refund. 

Upon failure of the required 

referendum, each producer or importer 

who paid an assessment pursuant to this 

subpart during the period beginning on 

the effective date of the Order and 

ending on the date the required 

referendum results are announced may 

obtain a refund of such assessment only 

by following the procedures prescribed 

in this section and any regulations 

recommended by the Board and 

prescribed by the Secretary: 

(a) A producer or importer shall 

obtain a Board-approved refund 

application form from the Board. Such 

forms may be obtained by written 

request to the Board and the request 

shall bear the producer’s or importer’s 

signature or properly witnessed mark. 

(b) Any producer or importer 

requesting a refund shall 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. The refund application shall 

show: 

(1) Producer’s or importer’s name and 

address; 

(2) Name and address of the person 

who collected applicant’s assessment; 

(3) Number of bushels or tons of 

sorghum on which a refund is 

requested; 

(4) Total amount of refund requested; 

(5) Date or inclusive dates on which 

assessments were paid; and 

(6) The producer’s or importer’s 

signature or properly witnessed mark. 

(c) The documentation provided 

pursuant to § 1221.125(b) to the 

producer by the first handler 

responsible for collecting an assessment 

pursuant to this subpart, or a copy 

thereof, or such other evidence deemed 

satisfactory to the Board, shall 

accompany the producer’s refund 

application. An importer must submit 

documentation showing that the 

assessment was paid along with a copy 

of the appropriate Customs form stating 

the net market value of the sorghum. 

(d) The Board shall initiate payment 

of refund requests, or pay a prorated 

share thereof, within 90 days of the date 

the results of the required referendum 

are released by the Secretary. Refunds 

shall be paid in a manner consistent 

with § 1221.119. 

Promotion, Research, and Information 

§ 1221.121 Programs, plans, and projects. 

(a) The Board shall receive and 

evaluate, or on its own initiative 

develop, and submit to the Secretary for 

approval any program, plan, or project 

authorized under this subpart. Such 

programs, plans, or projects shall 

provide for: 

(1) The establishment, issuance, 

effectuation, and administration of 

appropriate programs for promotion, 

research, and information, including 

consumer and industry information, 

with respect to sorghum; and 

(2) The establishment and conduct of 

research with respect, but not limited to: 

the yield, use, nutritional value and 

benefits, sale, distribution, and 

marketing of sorghum, and the creation 

of new products thereof, to the end that 

the marketing and use of sorghum may 

be encouraged, expanded, improved, or 

made more acceptable; and to advance 

the image, desirability, or quality of 

sorghum. 

(b) No program, plan, or project shall 

be implemented prior to its approval by 

the Secretary. Once a program, plan, or 

project is so approved, the Board shall 

take appropriate steps to implement it. 

(c) Each program, plan, or project 

implemented under this subpart shall be 

reviewed or evaluated periodically by 

the Board to ensure that it contributes 

to an effective program of promotion, 

research, or information. If it is found by 

the Board that any such program, plan, 

or project does not contribute to an 

effective program of promotion, 

research, or information, then the Board 

shall terminate such program, plan, or 

project. 

(d) No program, plan, or project 

including advertising shall be false or 

misleading or disparaging to another 

agricultural commodity. Sorghum of all 

origins shall be treated equally. 

§ 1221.122 Independent evaluation. 

Pursuant to the Federal Agriculture 

Improvement and Reform Act of 1996 (7 

U.S.C. 7411–7425), the Board shall, not 

less often than every five years, 

authorize and fund, from funds 

otherwise available to the Board, an 

independent evaluation of the 

effectiveness of the Order and other 

programs conducted by the Board 

pursuant to the Act. The Board shall 

submit to the Secretary, and make 

available to the public, the results of 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65857 

each periodic independent evaluation 

conducted under this paragraph. 

§ 1221.123 Patents, copyrights, inventions, 

trademarks, information, publications, and 

product formulations. 

(a) Any patents, copyrights, 

inventions, trademarks, information, 

publications, or product formulations 

developed through the use of funds 

collected by the Board under the 

provisions of this subpart shall be the 

property of the U.S. Government, as 

represented by the Board, and shall, 

along with any rents, royalties, residual 

payments, or other income from the 

rental, sales, leasing, franchising, or 

other uses of such patents, copyrights, 

inventions, trademarks, information, 

publications, or product formulations, 

inure to the benefit of the Board; shall 

be considered income subject to the 

same fiscal, budget, and audit controls 

as other funds of the Board; and may be 

licensed subject to approval by the 

Secretary. Upon termination of this 

subpart, § 1221.131 shall apply to 

determine disposition of all such 

property. 

(b) Should patents, copyrights, 

inventions, trademarks, information, 

publications, or product formulations be 

developed through the use of funds 

collected by the Board under this 

subpart and funds contributed by 

another organization or person, 

ownership and related rights to such 

patents, copyrights, inventions, 

trademarks, information, publications, 

or product formulations shall be 

determined by agreement between the 

Board and the party contributing funds 

towards the development of such 

patents, copyrights, inventions, 

trademarks, information, publications, 

or product formulations in a manner 

consistent with paragraph (a) of this 

section. 

Reports, Books, and Records 

§ 1221.124 Reports. 

(a) Each first handler, on a State-byState basis, will be required to provide 

to the Board periodically such 

information as may be required by the 

Board, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of bushels or tons of 

domestic sorghum handled within the 

State; 

(2) Number of bushels or tons of 

domestic sorghum within the State on 

which an assessment was paid; 

(3) The amount of assessments 

remitted on sorghum within the State; 

(4) Date that any assessments were 

paid within the State; 

(5) The explanation, if necessary, to 

show why the remittance is less than 

the applicable assessment rate 

multiplied by the net market price 

multiplied by the number of bushels or 

tons handled within the State; and 

(6) The first handler’s tax 

identification number. 

(b) Each importer will be required to 

provide to the Board periodically such 

information as may be required by the 

Board, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of bushels or tons of 

sorghum imported; 

(2) Number of bushels or tons of 

imported sorghum on which an 

assessment was paid; 

(3) The amount of assessments 

remitted; 

(4) Date that any assessments were 

paid; 

(5) The explanation, if necessary, to 

show why the remittance is less than 

the applicable assessment rate 

multiplied by the net market value; and 

(6) The importer’s tax identification 

number. 

§ 1221.125 Books and records. 

(a) Each first handler or importer shall 

maintain and make available to the 

Secretary for inspection such books and 

records as may be required by 

regulations recommended by the Board 

and prescribed by the Secretary, 

including records necessary to verify 

any required reports. Such records shall 

be maintained for at least 2 years 

beyond the fiscal period of their 

applicability. 

(b) Each first handler responsible for 

collecting assessments pursuant to this 

subpart is required to give the producer 

from whom the assessment was 

collected, written evidence of payment 

of the assessment paid pursuant to this 

subpart. Such written evidence serving 

as a receipt shall include, but not be 

limited to, the following information: 

(1) Name and address of the first 

handler, 

(2) Name of producer who paid the 

assessment, 

(3) Total number of bushels or tons of 

sorghum on which the assessment was 

paid, 

(4) Total assessment paid by the 

producer, 

(5) Date of sale, and 

(6) Such other information as the 

Board, with the approval of the 

Secretary, may require. 

§ 1221.126 Use of information. 

Information from records or reports 

required pursuant to this subpart shall 

be made available to the Secretary as is 

appropriate to the administration or 

enforcement of the Act, subpart, or any 

regulation issued under the Act. In 

addition, the Secretary may authorize 

the use, under this part, of information 

regarding producers, first handlers, or 

importers, that is accumulated under 

laws or regulations other than the Act or 

regulations issued under the Act. 

§ 1221.127 Confidential treatment. 

All information obtained from books, 

records, or reports under the Act and 

this part shall be kept confidential by all 

persons, including all employees and 

former employees of the Board, all 

officers and employees and former 

officers and employees of contracting 

and subcontracting agencies or agreeing 

parties having access to such 

information. Such information shall not 

be available to Board representatives, 

first handlers, producers, or importers. 

Only those persons having a specific 

need for such information to effectively 

administer the provisions of this subpart 

shall have access to such information. 

Only such information so obtained as 

the Secretary deems relevant shall be 

disclosed by them, and then only in a 

judicial proceeding or administrative 

hearing brought at the direction, or on 

the request, of the Secretary, or to which 

the Secretary or any officer of the 

United States is a party, and involving 

this subpart. Nothing in this section 

shall be deemed to prohibit: 

(a) The issuance of general statements 

based upon the reports of the number of 

persons subject to this subpart or 

statistical data collected therefrom, 

which statements do not identify the 

information furnished by any person; 

and 

(b) The publication, by direction of 

the Secretary, of the name of any person 

who has been adjudged to have violated 

this part, together with a statement of 

the particular provisions of this part 

violated by such person. 

Qualification of Sorghum Producer 

Organizations 

§ 1221.128 Qualification. 

(a) Organizations receiving 

qualification from the Secretary will be 

entitled to submit requests for funding 

to the Board pursuant to § 1221.112(j). 

Only one sorghum producer 

organization per State may be qualified. 

(b) State-legislated sorghum 

promotion, research, and information 

organizations may request qualification 

and will be considered first for 

qualification by the Secretary. 

(c) If a State-legislated sorghum 

promotion, research, and information 

organization does not elect to seek 

qualification from the Secretary within 

mstockstill on PROD1PC66 with PROPOSALS2

65858 Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 

a specified time period as determined 

by the Secretary, or does not meet 

eligibility requirements as specified by 

the Secretary, then any State sorghum 

producer organization whose primary 

purpose is to represent sorghum 

producers within a State, or any other 

State organization that has sorghum 

producers as part of its membership, 

may request qualification. 

(d) Qualification shall be based, in 

addition to other available information, 

upon a factual report submitted by the 

organization that shall contain 

information deemed relevant and 

specified by the Secretary for the 

making of such determination, 

including the following: 

(1) The geographic territory covered 

by the organization’s active 

membership; 

(2) The nature and size of the 

organization’s active membership, 

proportion of active membership 

accounted for by producers, a map 

showing the sorghum producing 

counties in which the organization has 

active members, the volume of sorghum 

produced in each such county, the 

number of sorghum producers in each 

such county, and the size of the 

organization’s active sorghum producer 

membership in each such county; 

(3) The extent to which the sorghum 

producer membership of such 

organization is represented in setting 

the organization’s policies; 

(4) Evidence of stability and 

permanency of the organization; 

(5) Sources from which the 

organizations operating funds are 

derived; 

(6) The functions of the organization; 

and 

(7) The ability and willingness of the 

organization to further the purpose and 

objectives of the Act. 

(e) The primary consideration in 

determining the eligibility of an 

organization shall be whether its 

sorghum producer membership consists 

of a sufficiently large number of 

sorghum producers who produce a 

relatively significant volume of sorghum 

to reasonably warrant its qualification to 

submit requests for funding to the 

Board. Any sorghum producer 

organization found eligible by the 

Secretary under this section will be 

qualified by the Secretary, and the 

Secretary’s determination as to 

eligibility shall be final. 

Miscellaneous 

§ 1221.129 Right of the Secretary. 

All fiscal matters, programs, plans, or 

projects, rules or regulations, reports, or 

other substantive actions proposed and 

prepared by the Board shall be 

submitted to the Secretary for approval. 

§ 1221.130 Referenda. 

(a) For the purpose of ascertaining 

whether the persons subject to this part 

favor the continuation, suspension, or 

termination of this part, the Secretary 

shall conduct a referendum among 

persons subject to assessments under 

§ 1221.116 who, during a representative 

period determined by the Secretary, 

have engaged in the production or 

importation of sorghum. 

(1) The referendum shall be 

conducted not later than 3 years after 

assessments first begin under this part. 

(2) This part will be approved in a 

referendum if a majority of those 

persons voting vote for approval. 

(b) The Secretary shall conduct a 

subsequent referendum: 

(1) Not later than 7 years after 

assessments first begin under this part; 

(2) At the request of the Board; or 

(3) At the request of 10 percent or 

more of the sorghum producers or 

importers eligible to vote to determine 

if the persons favor the continuation, 

suspension, or termination of this part. 

(c) The Secretary may conduct a 

referendum at any time to determine 

whether the continuation, suspension or 

termination of this part or a provision of 

this part is favored by sorghum 

producers eligible to vote. 

(d) The Board shall reimburse the 

Secretary for any expenses incurred by 

the Secretary to conduct referenda. 

(e) A referendum conducted under 

this section with respect to this part 

shall be conducted in the manner 

determined by the Secretary to be 

appropriate. 

§ 1221.131 Suspension or termination. 

(a) The Secretary shall suspend or 

terminate this part or subpart or a 

provision thereof if the Secretary finds 

that the subpart or a provision thereof 

obstructs or does not tend to effectuate 

the purposes of the Act, or if the 

Secretary determines that this subpart or 

a provision thereof is not favored by 

persons voting in a referendum 

conducted pursuant to the Act. 

(b) The Secretary shall suspend or 

terminate this subpart at the end of the 

fiscal period whenever the Secretary 

determines that its suspension or 

termination is approved or favored by a 

majority of the producers and importers 

voting who, during a representative 

period determined by the Secretary, 

have been engaged in the production or 

importation of sorghum. 

(c) If, as a result of a referendum the 

Secretary determines that this subpart is 

not approved, the Secretary shall: 

(1) No later than 180 days after 

making the determination, suspend or 

terminate, as the case may be, collection 

of assessments under this subpart; and 

(2) As soon as practical, suspend or 

terminate, as the case may be, activities 

under this subpart in an orderly 

manner. 

§ 1221.132 Proceedings after termination. 

(a) Upon the termination of this 

subpart, the Board shall recommend not 

more than five of its representatives to 

the Secretary to serve as trustees for the 

purpose of liquidating the affairs of the 

Board. Such persons, upon designation 

by the Secretary, shall become trustees 

of all of the funds and property then in 

the possession or under control of the 

Board, including claims for any funds 

unpaid or property not delivered, or any 

other claim existing at the time of such 

termination. 

(b) The said trustees shall: 

(1) Continue in such capacity until 

discharged by the Secretary; 

(2) Carry out the obligations of the 

Board under any contracts or 

agreements entered into pursuant to the 

Order; 

(3) From time to time, account for all 

receipts and disbursements and deliver 

all property on hand, together with all 

books and records of the Board and the 

trustees, to such person or persons as 

the Secretary may direct; and 

(4) Upon request of the Secretary, 

execute such assignments or other 

instruments necessary and appropriate 

to vest in such persons, title and right 

to all funds, property and claims vested 

in the Board or the trustees pursuant to 

the Order. 

(c) Any person to whom funds, 

property or claims have been transferred 

or delivered pursuant to the Order shall 

be subject to the same obligations 

imposed upon the Board and upon the 

trustees. 

(d) Any residual funds not required to 

defray the necessary expenses of 

liquidation shall be turned over to the 

Secretary to be disposed of, to the extent 

practical, by qualified organizations 

pursuant to § 1221.128 in the interest of 

continuing sorghum promotion, 

research, and information programs. 

§ 1221.133 Effect of termination or 

amendment. 

Unless otherwise expressly provided 

by the Secretary, the termination or 

amendment of this part or any subpart 

thereof, shall not: 

(a) Affect or waive any right, duty, 

obligation or liability which shall have 

arisen or which may thereafter arise in 

connection with any provision of this 

part; or 

mstockstill on PROD1PC66 with PROPOSALS2

Federal Register / Vol. 72, No. 225 / Friday, November 23, 2007 / Proposed Rules 65859 

(b) Release or extinguish any violation 

of this part; or 

(c) Affect or impair any rights or 

remedies of the United States, or of the 

Secretary, or of any other persons with 

respect to any such violation. 

§ 1221.134 Personal liability. 

No representative or employee of the 

Board shall be held personally 

responsible, either individually or 

jointly with others, in any way 

whatsoever, to any person for errors in 

judgment, mistakes, or other acts, either 

of commission or omission, as such 

representative or employee, except for 

acts of dishonesty or willful 

misconduct. 

§ 1221.135 Separability. 

If any provision of this subpart is 

declared invalid or the applicability 

thereof to any person or circumstances 

is held invalid, the validity of the 

remainder of this subpart or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

§ 1221.136 Amendments. 

Amendments to this subpart may be 

proposed from time to time by the Board 

or by any interested person affected by 

the provisions of the Act, including the 

Secretary. 

§ 1221.137 Rules and regulations. 

The Secretary may prescribe such 

rules and regulations as may be 

necessary to effectively carry out the 

provisions of this subpart. 

§ 1221.138 OMB control number. 

The control number assigned to the 

information collection requirements of 

this part by the Office of Management 

and Budget pursuant to the Paperwork 

Reduction Act of 1995, 44 U.S.C. 

Chapter 35, is OMB control number 

0505—new. 

Subparts B Through E—[Reserved] 

Dated: November 15, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 07–5767 Filed 11–21–07; 8:45 am] 

BILLING CODE 3410–02–P 

mstockstill on PROD1PC66 with PROPOSALS2