Concrete Masonry Products Research, Education and Promotion Order; Referendum Procedures, 23271-23277 [2021-08891]

Agencies

• DEPARTMENT OF COMMERCE
• Office of the Under-Secretary for Economic Affairs

[Federal Register Volume 86, Number 83 (Monday, May 3, 2021)]
[Rules and Regulations]
[Pages 23271-23277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08891]


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DEPARTMENT OF COMMERCE

Office of the Under-Secretary for Economic Affairs

15 CFR Chapter XV

[Docket No.: 210422-0086]
RIN 0605-AA56


Concrete Masonry Products Research, Education and Promotion 
Order; Referendum Procedures

AGENCY: Under Secretary for Economic Affairs, United States Department 
of Commerce.

ACTION: Final rule.

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SUMMARY: This rule establishes procedures for conducting a referendum 
to determine whether manufacturers of concrete masonry units 
(manufacturers) favor the issuance of a Concrete Masonry Products 
Research, Education, and Promotion Order (Order). The purpose of the 
Order would be to strengthen the position of the concrete masonry 
products industry in the domestic marketplace; maintain, develop, and 
expand markets and uses for concrete masonry products in the domestic 
marketplace; and promote the use of concrete masonry products in 
construction and building. The Department will publish a proposed Order 
that will become final if approved by referendum.

DATES: This final rule is effective May 3, 2021. Registration to 
participate in the referendum begins May 4, 2021, and will continue 
though midnight of the day prior to the first day of the referendum 
period (see Summary of Final Rule below). The Department will announce 
the referendum period along with a final proposed Order in a separate 
notification in a later Federal Register.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Thompson, Communications 
for the Commerce Checkoff Implementation Program, Office of the Under 
Secretary for Economic Affairs, telephone: (202) 482-0671 or via 
electronic mail: [email protected].

[[Page 23272]]


SUPPLEMENTARY INFORMATION: Pursuant to the Concrete Masonry Products 
Research, Education, and Promotion Act of 2018, 15 U.S.C. 8701 et seq. 
(the Act), the Department is enacting a research, education, and 
promotion program (commonly referred to as a checkoff program) for 
concrete masonry products. The Act also authorizes the Secretary to 
``issue such regulations as may be necessary to carry out [the Act] and 
the power vested in the Secretary under [the Act].'' 15 U.S.C. 8713. 
The Act specifically authorizes the Secretary to conduct the 
referendum, and states that ``[referenda . . . shall be conducted in a 
manner determined by the Secretary.'' 15 U.S.C. 8706(c)(1).
    As part of this rulemaking process, the Department published (1) a 
proposed Order (85 FR 52059, August 24, 2020), and (2) proposed 
referendum procedures (85 FR 65288, October 15, 2020). This rule 
finalizes the referendum procedures for which the comment period 
expired on November 16, 2020. The Department received comments from 
five commenters regarding the proposed referendum procedures (see below 
for comments and responses).

Executive Order 12866

    This rulemaking is not a significant regulatory action under 
Executive Order 12866. Because it is not a significant action under 
Executive Order 12866, it is not subject to Executive Order 13771.

Summary of Final Rule

    The Department will conduct a referendum in 2021 (the Department 
will publish the dates when it publishes the second proposed Order). 
Each manufacturer eligible to vote in the referendum is entitled to one 
vote. The Department will use Employer Identification Numbers (EINs) to 
identify manufacturers, with each manufacturer EIN entitled to a vote. 
The use of EINs will prevent duplicate voting and provide a clear 
method for listing manufacturers. For the order to go into effect, 
there must be a majority ``yes'' vote by both: (1) The total number of 
concrete masonry unit manufacturers voting, and (2) manufacturers who 
operate a majority of the machine cavities operated by the 
manufacturers voting in the referendum. Manufacturers must register 
prior to midnight of the day prior to the start of the referendum 
period in order to vote.
    This final rule notifies all interested voters that they must 
register prior to the beginning of the referendum period. For the 
initial referendum the Department will mail registration forms to those 
manufacturers of concrete masonry units of which it is aware. The 
Department also will make the registration form available on the 
Department of Commerce website (https://www.commerce.gov/bureaus-and-offices/ousea/concrete-masonry-checkoff) or by email request to 
[email protected]. Based on the registration, the Department will 
provide ballots to eligible voters. For the initial referendum the 
Department will mail ballots to eligible, registered manufacturers. For 
a manufacturer to be eligible they must have manufactured concrete 
masonry units within 180 days of the referendum period. During the 
referendum, the Department will collect and review all ballots received 
and determine whether any ballots are invalid and should not be 
counted. After tallying all valid ballots, the Department will prepare 
a report on the referendum and announce the results to the public. The 
Department would use these same procedures for any subsequent 
referendum under the Act. For any future proposed orders, voter 
eligibility would be based on the scope of such proposed orders.

Final Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (RFA), first enacted in 1980 and 
codified at 5 U.S.C. 600-611, was intended to place the burden on the 
government to review all new regulations to ensure that, while 
accomplishing their intended purposes, they do not unduly inhibit the 
ability of small entities to compete. The RFA recognizes that the size 
of a business, unit of government, or nonprofit organization can have a 
bearing on its ability to comply with Federal regulations. Major goals 
of the RFA are: (1) To increase agency awareness and understanding of 
the impact of their regulations on small business; (2) to require that 
agencies communicate and explain their findings to the public; and (3) 
to encourage agencies to use flexibility and to provide regulatory 
relief to small entities.
    The RFA emphasizes predicting significant adverse impacts on small 
entities as a group distinct from other entities and on the 
consideration of alternatives that may minimize the impacts, while 
still achieving the stated objective of the action. The Department 
published an Initial Regulatory Flexibility Analysis (IRFA) in the 
proposed rule and described the impact of the proposed rule on small 
entities. The final Regulatory Flexibility Analysis follows.

Basis and Purpose of the Rule

    This action is taken under the authority of the Act, which 
authorizes a research, education, and promotion program for concrete 
masonry products, also known as a checkoff program. The Secretary will 
establish this checkoff program by issuance of an order issued that is 
subject to approval by an industry referendum. If industry approves of 
the order, the program would then be carried out by a Board, which 
would develop research and education programs as well as efforts to 
promote concrete masonry products in domestic markets. Board activities 
would be funded by assessments on manufacturers of concrete masonry 
products, based on the number of masonry units sold each quarter. The 
Department published the proposed order in the Federal Register on 
August 24, 2020 (85 FR 52059). That document discussed the objectives 
of and legal basis for the proposed order and are not repeated here.
    This rule establishes procedures for conducting a referendum to 
determine whether manufacturers of concrete masonry units favor the 
issuance of the order. The Department of Commerce will conduct the 
referendum. The Secretary will implement this program if the Secretary 
determines that a majority of manufacturers voting who also represent a 
majority of the machine cavities in operation of those manufacturers 
voting in the referendum are in favor of the program. The Department 
will use these procedures for any subsequent referendum under the 
Order.

A Statement of the Significant Issues Raised by Public Comments or by 
the Chief Counsel for Advocacy of the Small Business Administration in 
Response to the Initial Regulatory Flexibility Analysis

    The Department received one comment that pointed out an apparent 
inaccuracy in the total employment number 6,344 jobs, as depicted in 
table 3 in the IRFA. The Department recognizes the table can cause 
confusion. The Department provided a footnote and hyperlink from the 
Census Bureau (https://www.census.gov/programs-surveys/susb/about/glossary.html) that provides additional explanation of information in 
the table. The relevant additional information is provided below:
    Enterprise: An enterprise (or ``company'') is a business 
organization consisting of one or more domestic establishments that 
were specified under common ownership or control.

[[Page 23273]]

The enterprise and the establishment are the same for single-
establishment firms. Each multi-establishment company forms one 
enterprise--the enterprise employment and annual payroll are summed 
from the associated establishments.
    Enterprise Size: Enterprise size designations are determined by the 
summing employment of all associated establishments. Employer 
enterprises with zero employees are enterprises for which no associated 
establishments reported paid employees in the mid-March pay period but 
paid employees at some time during the year.
    Firm: A firm is a business organization consisting of one or more 
domestic establishments in the same geographic area and industry that 
were specified under common ownership or control. The firm and the 
establishment are the same for single-establishment firms. For each 
multi-establishment firm, establishments in the same industry within a 
geographic area will be counted as one firm; the firm employment and 
annual payroll are summed from the associated establishments.
    One company or business can have multiple firms. Of the 430 firms 
noted in the table, 401 firms or 93 percent came from companies with 
fewer than 500 employees. And these 401 firms accounted for 514 
establishments, or 75 percent of all establishments and 62 percent of 
employment across the industry in the United States.

A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
Available

    This final rule applies to products manufactured on concrete block 
machines and used for construction. As indicated by the data below and 
confirmed by industry experts, the industry is dominated by small 
entities.
    The U.S. Small Business Administration size standard to qualify as 
a small business for Federal Government programs is 500 or fewer 
employees in this industry.\1\ According to Census Bureau data, there 
were 430 firms and 686 establishments engaged in concrete block and 
brick manufacturing in 2017.\2\ Of these, 401 firms, or 93 percent, 
employed fewer than 500 employees, and these small firms accounted for 
514 establishments, or 75 percent of all establishments and 62 percent 
of industry employment.\3\ Note that a single company or business can 
have multiple firms, and a single firm can have multiple 
establishments.
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    \1\ See ``Table of Small Business Size Standards Matched to 
North American Industry Classification System Codes'' on the U.S. 
Small Business Administration website. For the economic analysis the 
Department used statistics for the North American Industry 
Classification System (NAICS) code 327331, concrete block and brick 
manufacturing.
    \2\ A firm is a business organization consisting of one or more 
domestic establishments in the same state and industry that were 
specified under common ownership or control and an establishment is 
a single physical location at which business is conducted or 
services or industrial operations are performed. See ``Statistics of 
U.S. Businesses Glossary'' on the U.S. Census Bureau website.
    \3\ See ``2017 SUSB Annual Data Tables by Establishment 
Industry'' on the U.S. Census Bureau website. For more information, 
see the County Business Patterns methodology on the Census website.
[GRAPHIC] [TIFF OMITTED] TR03MY21.000

A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule to Affected Entities

    This action would impose a reporting burden on eligible 
manufacturers of concrete masonry units. To participate in the 
referendum, eligible manufacturers would register with the Department 
in advance of the referendum period. Eligible manufacturers would have 
the opportunity to complete and submit a ballot to the Department 
indicating whether or not they favor implementation of the proposed 
order. The specific burdens for registration and the ballot are 
detailed later in this document in the section titled ``Paperwork 
Reduction Act''.
    There are no special skills required to complete the registration 
or ballot forms. The Department estimates that the respondent burden of 
the referendum is 0.5 hours for registration and 0.25 hours to complete 
the ballot and that approximately 690 small businesses will be 
affected. This results in a total estimated burden on small businesses 
of 517.5 hours. According to the Bureau of Labor Statistics, the median 
pay for industrial production managers is $50.71 per hour.\4\ Thus, the 
Department estimates that the cost to firms of participating in the 
referendum will average $38.03.
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    \4\ See the Occupational Outlook Handbook on the Bureau of Labor 
Statistics website, https://www.bls.gov/ooh/.

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[[Page 23274]]

A Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    To minimize the respondent burden, the Department plans to create 
simple forms for ease of registration and voting. Further, the 
Department plans to allow registration and voting by mail or fax--at 
the choice of the respondent.
    In order to comply with the statutory requirements of the Act, 
there are no possible alternatives to this final rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), the Department submitted to the Office of Management and 
Budget (OMB) for approval the information collection requests 
associated with this rulemaking. OMB approved the information 
collection requests under OMB Number 0605-0029.
    Title: Concrete Masonry Products Research, Education, and Promotion 
Order; Referendum procedures.
    OMB Number: 0605-0029.
    Expiration Date of Approval: May 3, 2024.
    Type of Request: New information collection for research, education 
and promotion programs.
    Abstract: The Department seeks to establish an orderly program for 
developing, financing, and carrying out an effective, continuous, and 
coordinated program of research, education, and promotion to support 
the concrete masonry products industry. The Department has published a 
proposed Order in the Federal Register to establish the program. The 
purpose of the proposed Order is to strengthen the position of the 
concrete masonry products industry in the domestic marketplace; 
maintain, develop, and expand markets and uses of concrete masonry 
products in the domestic marketplace; and promote the use of concrete 
masonry products in construction and building. The proposed Order 
allows a Concrete Masonry Products Board (Board) made up of industry 
members appointed by the Secretary of Commerce (Secretary) to develop 
and implement programs of research, education, and promotion. The 
funding of the Board's activities and programs will be through 
assessments paid by manufacturers of concrete masonry units. The 
initial assessment will be $.01 per concrete masonry unit sold.
    The Secretary will hold a referendum among eligible manufacturers 
to determine whether they favor the implementation of the proposed 
Order. A final Order only will go into effect if the referendum results 
in the affirmative vote of a majority of those voting and also a 
majority of the block machine cavities in operation by those voting.
    There are two forms in this information collection request relating 
to the referendum. The first is the registration form for the concrete 
referendum. The registration form may be submitted by eligible concrete 
masonry unit manufacturers and is necessary to ensure that the 
referendum is accurate and complete. Manufacturers only may participate 
in the referendum if they register. The second form relates to the 
ballot form for the concrete referendum. Eligible concrete masonry unit 
manufacturers may complete and submit the ballot to reflect their 
desire for or against implementing the order. Authorizing Statute: 15 
U.S.C. Chapter 113 (sections 8701-8717).

Registration

    Estimate of Burden: 0.5 hour per application.
    Respondents: Manufacturers of concrete masonry units.
    Estimated Number of Respondents: 690.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 345 hours.
    The Department will add the registration form to the other 
information collections approved under OMB No. 0605-0029.

Ballot

    Estimate of Burden: 0.25 hour per ballot.
    Respondents: Manufacturers of concrete masonry units.
    Estimated Number of Respondents: 690.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 172.5 hours.
    The Department will add the ballot form to the other information 
collections approved under OMB No. 0605-0029.
    The Department published a proposed rule regarding the referendum 
procedures in the Federal Register on October 15, 2020 (85 FR 65288). 
The Department made available copies of the rule through the Office of 
the Federal Register also via the internet at https://www.regulations.gov. That rule provided for a 30-day comment period. In 
the proposed rule, the Department invited comments on the information 
collection requirements prescribed in the Paperwork Reduction Act 
section of this rule. Specifically, the Department solicited comments 
on: (a) Whether these information collection requirements (ICRs) are 
necessary for the proper performance of the functions of the 
Department, including whether the information has practical utility; 
(b) the accuracy of the Department's estimates of the burden of the 
ICRs; (c) the quality, utility, and clarity of the information to be 
collected; and (d) whether the burden of collection of information on 
those who are to respond, including through the use of automated 
collection techniques or other forms of information technology, may be 
minimized. One commenter stated that the industry should have been 
provided the opportunity to review the actual forms. The Department 
published in its proposed rule (85 FR 65288, October 15, 2020) that it 
will restrict the information collection request to that information 
needed to ensure eligibility of the registrant and voter to participate 
(two forms--a registration and the ballot) in the referendum and then 
the notice accurately described the types of information the forms will 
require. The public had a chance to comment on the information 
collection request during the public comment period.
    Pursuant to 5 U.S.C. 553(d)(3), the Department finds that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because this rule 
must be in effect for the Department to allow registration for those 
desiring to participate in the referendum. Additionally, the regulated 
entities are not harmed by an immediate effective date because this 
rule (1) does not impose any requirements on regulated entities that 
require preparation, and (2) provides at least 30 days for affected 
entities to register prior to the beginning of the referendum period.

Summary of Public Comments and the Department's Responses

    The Department published the proposed rule concerning this action 
in the Federal Register on October 15, 2020 (85 FR 65288) and provided 
a 30-day comment period ending November 16, 2020. The Department 
received comments from five commenters, one of which was a duplicate. 
One fully supported the proposed Order and referendum procedures, one 
was generally opposed to the order and referendum, and two were in 
support but desired further clarity. The comments are addressed in the 
following paragraphs.

[[Page 23275]]

Comments in Full Support

    Comment: The Department received one comment which supported the 
proposed Order with no changes. The commenter noted that passing the 
referendum will be a critical variable in the success of their business 
and customers.
    Response: The Department appreciates the comment.

Comments in Support, With Recommendation

    Comment: One commenter noted that under the instruction found in 
Sec.  1500.103(b) under the types of information the Department did not 
include the ``machine'' when referring to cavities.
    Response: The missing word ``machine'' was inadvertent, and the 
Department will add ``machine'' to the final referendum procedures 
rule.
    Comment: One commenter requested the Department make explicit on 
registration forms that the registrant only count machine cavities used 
to manufacture concrete masonry units. Additionally, the commenter 
requests that registration forms and communications are clear that only 
those EINs under which machine cavities are being used to manufacture 
concrete masonry units be considered eligible to participate in the 
referendum.
    Response: The Department agrees with both of these comments. 
Registration forms will state that registrants only count machine 
cavities used to manufacture concrete masonry units, and registration 
forms and other relevant communications will state that only those EINs 
under which machine cavities are being used to manufacture concrete 
masonry units be considered eligible to participate in the referendum.

Comments Generally Opposed

    Comment: One commenter recommended the Department better refine 
reporting of machine cavities, distinguishing between machines 
producing concrete masonry units from those designed for dual purpose. 
The commenter states that ``[a]dvancements in the technology of these 
manufacturing machines has made it possible to interchange molds 
between concrete masonry units and pavers on the same machine. Thus, a 
block machine that normally is used to produce pavers could be used to 
manufacture one concrete masonry unit for the sole purpose of 
qualifying for the referendum.''
    Response: The commenter differentiates those machines that have 
convertible capacity from those normally associated with concrete 
masonry unit (CMU) production using the phrase ``traditional concrete 
masonry unit cavities''. While the Department understands the 
commenter's desire to constrain those cavities eligible to count toward 
the total participating, the statute clearly does not make any such 
distinction. The term ``machine cavities in operation'' means those 
machine cavities associated with a block machine that have produced 
concrete masonry units within the last 6 months of the date set for 
determining eligibility and is fully operable and capable of producing 
concrete masonry units. The Department interprets the statute in 
accordance with accepted principles of statutory construction. 
Therefore, a manufacturer may include in its cavity count total those 
cavities that have produced concrete masonry units within six months of 
the referendum, regardless of whether it is on a machine designed for 
the dual purpose or sole purpose of making concrete masonry units.
    Both the registration form and ballot form are official government 
forms. Both have the following statement: the making of any false 
statement or representation on this form, knowing it to be false, is a 
violation of Title 18, Section 1001 United States Code, which provides 
for the penalty of a fine of $10,000 or imprisonment of not more than 
five years or both.
    Comment: The Department received a comment voicing concern at the 
introduction of the new terms ``Lead Executive'' and ``Agent.'' Another 
commenter voiced concern on both the impartiality of the agents as well 
as lack of oversight of the vote.
    Response: The statute grants the Secretary the authority to 
determine the manner in which to conduct the referendum. Agents that 
will conduct the referendum are employees of the Department of 
Commerce. The Lead Executive is a member of the Senior Executive 
Service and will oversee the vote count and report the results to the 
Secretary. The Department will amend its definition to make clear the 
Lead Executive is a member of the Senior Executive Service and agents 
are employees of the Department of Commerce.
    Comment: The Department received another comment that the 
referendum procedures should include more specificity concerning the 
initial referendum.
    Response: As the commenter notes, these rules apply to all future 
referenda and therefore purposely provide the Secretary the latitude to 
make adjustments to the process. For example, the Department will allow 
voters to cast ballots by mail-in and fax for the initial referendum. 
However, advancements in technology may allow subsequent referenda to 
occur online or using voting software. To help clarify its intent on 
casting ballots, the Department will add possible examples of ballot 
casting methods. Similarly, the referendum period will change for 
subsequent referenda, and the Department will provide adequate advance 
notice for any such changes in the Federal Register.
    Comment: One commenter disagreed with the language that ``Agents 
will not refuse a ballot to any person who claims to be eligible to 
vote'' in proposed Sec.  1500.103(e).
    Response: This language was meant to reinforce the requirement to 
register in advance of the voting period. However, the Department 
recognizes the potential confusion and will remove this clause from the 
final referendum procedures rule. With regard to voter eligibility, the 
Department makes explicit that if the Department requests, 
manufacturers shall provide proof of sales, proof of cavities in 
operation, or any other such proof the Department deems necessary to 
establish voting eligibility. Failure to provide the requested proof to 
the Department will result in ineligibility to participate in the 
referendum.
    Comment: One commenter thought the Department should ensure that 
all eligible producers be notified and guaranteed a vote in the 
referendum and that the Department have specific plans in place to 
ensure eligible manufactures receive proper notice of the referendum. 
Another commenter thought the Department should publish a listing of 
``pros and cons'' of check off programs as an aid to voters.
    Response: The Department will notify the public of any proposed 
rules through publication in the Federal Register. Such notification in 
the Federal Register provides constructive notice to the public, will 
specify the legal authority to issue the notice, and gives the notice 
and procedures status.

[[Page 23276]]

The Department is not responsible to individually notify each 
manufacturer nor would such individual notification allow for full 
public review and comment. Further, the Department is responsible to 
enact legislation as it is written and does not as a matter of practice 
issue ``pros and cons'' of its rulemaking. The Department will publish 
all notifications of its actions in the Federal Register with fulsome 
explanations of the considered action to encourage public comment.
    Comment: One commenter asked the Department to make explicit the 
role of the Concrete Masonry Products Board in future referenda. 
Specifically, the comment dealt with the possibility of expanding the 
scope of the order to include additional products.
    Response: Whether the Order goes into effect will be dependent only 
on the results of a completed referendum. Unilaterally expanding the 
scope of the Order would be beyond the powers and duties of the Board 
and would require a subsequent referendum on the new proposed Order. In 
short, any future expansion of the scope of the Order would require the 
Department to conduct a referendum, with voter eligibility being based 
on the scope of such proposed order.
    Comment: One commenter made a point to show the Department has 
missed several deadlines as outlined in the statute.
    Response: While the Department strives for strict adherence to all 
prescribed deadlines, the Department has diligently worked to implement 
the statutory requirements and will continue to implement regulations 
to further the statutory intent of in the most expeditious manner 
possible.
    Comment: One commenter felt that voter eligibility as outlined in 
the proposed order was inconsistent with the statute because it did not 
include manufacturers of concrete masonry products. The commenter 
requested that the Department provide clarity on voter eligibility.
    Response: Only manufacturers of concrete masonry units are subject 
to assessment, and therefore, only manufacturers of concrete masonry 
units are eligible to participate in the referendum if they have 
produced concrete masonry units within 180 days of the start of the 
referendum period. The proposed Order is thus consistent with the 
statute and provides that manufacturers of concrete masonry products 
that are subject to an assessment are eligible to participate in the 
referendum.

Additional Comments

    The Department received comments regarding suggestions for changes 
to the proposed Order that did not address the subject of referendum 
procedures. The Department did not make any change to the proposed 
referendum procedures based on those comments. The Department has 
considered these comments in finalizing the proposed Order and will 
address these comments in a future Federal Register document that 
announces and explains the final Order.

List of Subjects in 15 CFR Part 1500

    Administrative practice and procedure, Advertising, Concrete 
masonry promotion, Consumer information, Marketing agreements, 
Reporting and recordkeeping requirements.

0
For the reasons stated in the preamble, under the authority at 15 
U.S.C. 8701-8717, the Office of the Under-Secretary for Economic 
Affairs, Department of Commerce, adds 15 CFR chapter XV, consisting of 
part 1500, to read as follows:

Chapter XV--Office of the Under-Secretary for Economic Affairs, 
Department of Commerce

PART 1500--CONCRETE MASONRY RESEARCH, EDUCATION, AND PROMOTION

Subpart A [Reserved]
Subpart B--Referendum Procedures
Sec.
1500.100 General.
1500.101 Definitions.
1500.102 Voting.
1500.103 Instructions.
1500.104 Agents.
1500.105 Ballots.
1500.106 Referendum report.
1500.107 Confidential information.
1500.108 OMB control number.

    Authority: 15 U.S.C. 8701-8717.

Subpart A [Reserved]

Subpart B--Referendum Procedures

    Authority: 15 U.S.C. 8706.


Sec.  1500.100  General.

    Agents will conduct a referendum in accordance with this subpart.


Sec.  1500.101  Definitions.

    The following definitions apply to this subpart:
    (a) Agent means the Department of Commerce (Department) employee(s) 
the Secretary designates to conduct the referendum.
    (b) Eligible manufacturer means any person who is currently a 
manufacturer of concrete masonry units and has manufactured a concrete 
masonry unit within 180 days of the referendum period.
    (c) Employer Identification Number means the number generally 
issued to businesses by the U.S. Department of Treasury. An Employer 
Identification Number (EIN) is also known as a Federal Tax 
Identification Number and is used to identify a business entity. For 
more information on EINs and how to apply go to https://www.irs.gov/businesses.
    (d) Lead Executive means the individual or individuals the 
Secretary designates to oversee the conduct of the referendum and is a 
member of the Senior Executive Service.
    (e) Referendum period means the period of time, not less than 30 
days, that the Secretary or his agent determines appropriate for 
conducting the referendum.
    (f) Registration means the form and process eligible manufacturers 
who wish to vote must complete and follow in order to vote. Voters must 
register by midnight of the day prior to the beginning of the 
referendum period.


Sec.  1500.102   Voting.

    (a) Each eligible manufacturer shall be entitled to cast one vote.
    (b) The order shall become effective only if the Secretary 
determines that the order has been approved by a majority of 
manufacturers voting who also represent a majority of the machine 
cavities in operation of those manufacturers voting in the referendum.
    (c) In order to vote, a manufacturer must register by midnight of 
the day prior to the start of the referendum period.
    (d) For referendum purposes the Department will use Employer 
Identification Numbers (EIN) to identify unique manufacturers.
    (e) An officer or employee of an eligible manufacturer, or an 
administrator, executor, or trustee of an eligible entity may cast a 
ballot on behalf of such entity provided that any individual so voting 
shall certify that such individual is an officer or employee of the 
eligible entity, or an administrator, executor, or trustee of an 
eligible entity and that such individual has the authority to take such 
action. Upon request of an agent, the individual shall submit adequate 
evidence of such authority. The Secretary does not authorize proxy 
voting.
    (f) Voters are to cast ballots by the means specified by the 
Secretary, such means could include in person, mail-in,

[[Page 23277]]

fax, via internet link, or through use of voting software. In the case 
of the initial referendum, the Department will use a combination of 
mail-in and fax to allow voters to cast ballots.
    (g) If the Department requests, manufacturers shall provide proof 
of sales, proof of cavities in operation, or any other such proof the 
Department deems necessary to establish voting eligibility. Failure to 
provide the requested proof to the Department will result in 
ineligibility to participate in the referendum.


Sec.  1500.103   Instructions.

    The agent(s) shall conduct the referendum, in the manner provided 
in this subpart, under the supervision of the Secretary. The Secretary 
may prescribe additional instructions, consistent with the provisions 
of this subpart, to govern the procedure to be followed by the 
agent(s). Such agent(s) shall:
    (a) Determine the period during which voters may cast ballots;
    (b) Provide notification to allow interested voters to register in 
advance of the referendum period. The Department will restrict the 
information requested to that information needed to ensure eligibility 
of request or to participate in the referendum. Types of information 
will include name, contact information (address, phone number, email), 
status as a manufacturer of concrete masonry units, affirmation of 
having manufactured concrete masonry units within 180 days prior to the 
beginning of the referendum period, the number of machine cavities in 
operation, their Employer Identification Number, and similar 
identifying information;
    (c) Provide ballots and related material to voters for use in the 
referendum. The ballot shall provide for recording essential 
information, including information needed for ascertaining whether the 
person voting, or on whose behalf the vote is cast, is an eligible 
voter. The Department will restrict the information requested to that 
information needed to determine a voter's eligibility. Information will 
include the name and address of the manufacturer, status as a 
manufacturer of concrete masonry units, affirmation that they have 
manufactured concrete masonry units within 180 days of the beginning of 
the referendum period, manufacturer Employer Identification Number, the 
number of machine cavities the manufacturer has in operation, and 
similar verification information;
    (d) Give reasonable public notice of the referendum:
    (1) By using available media or public information sources, without 
incurring advertising expense, to publicize the dates, method of 
voting, eligibility requirements, and other pertinent information. Such 
sources of publicity may include, but are not limited to webinars and 
other such media vehicles; and
    (2) By such other means as the agent may deem advisable;
    (e) Send to eligible manufacturers whose names and addresses are 
known to the agent, the instructions on voting, a ballot, and a summary 
of the terms and conditions of the proposed order;
    (f) At the end of the referendum period, collect, open, number, and 
review the ballots and tabulate the results in the presence of the Lead 
Executive authorized to monitor the referendum process;
    (g) Prepare a report on the referendum; and
    (h) Announce the results to the public.


Sec.  1500.104   Agents.

    The Secretary may appoint agent(s) to conduct the referendum. 
Agent(s) may appoint any individual or individuals necessary or 
desirable to assist the agent in performing such agent's functions 
under this subpart. The agent authorizes each individual so appointed 
to perform any or all of the functions which, in the absence of such 
appointment, shall be performed by the agent.


Sec.  1500.105   Ballots.

    (a) The agent(s) shall accept all ballots cast. However, if an 
agent determines a need for additional review for any reason, the agent 
shall endorse above the voter's signature on the ballot with a 
statement to the effect that the ballot needs additional scrutiny. The 
agent will attach to the ballot information regarding the reasons for 
additional review, the results of any investigations made with respect 
to the review, and the final disposition of the review. Agents will not 
count ballots found to be invalid or late, a non-exhaustive list of 
examples include:
    (1) The ballot is blank, missing a vote, has no signature;
    (2) Both voting boxes are marked in the vote section;
    (3) The ballot arrives after midnight of the last day of the 
referendum period;
    (4) The ballot is in a state that agents cannot determine the vote; 
or
    (5) The ballot has a name that is different on the ballot from that 
of the registered voter, except for votes cast by power of attorney 
with sufficient documentation to prove such power of attorney.
    (b) As stated in Sec.  1500.102(e), the Secretary does not 
authorize proxy voting. However, agents will accept power of attorney 
votes with proper documentation.


Sec.  1500.106   Referendum report.

    Unless otherwise directed, the Lead Executive shall prepare and 
submit to the Secretary a report on the results of the referendum, the 
manner in which the agent(s) conducted the referendum, the kind of 
public notice given, and other information the Lead Executive finds 
pertinent to the analysis of the referendum and its results.


Sec.  1500.107   Confidential information.

    The ballots and other information or reports that reveal, or tend 
to reveal, the vote of any person covered under the order and the voter 
list shall be strictly confidential and shall not be disclosed.


Sec.  1500.108   OMB control number.

    The control number assigned to the information collection 
requirement in this subpart by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq., is OMB control number 0605-0029.

    Dated: April 23, 2021.
Kenneth White,
Senior Policy Analyst, Under Secretary for Economic Affairs.
[FR Doc. 2021-08891 Filed 4-30-21; 8:45 am]
BILLING CODE 3510-20-P