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

 
CONTENT
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Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules
(ii) Inspect the routing of microswitch
electrical harness ‘‘53K’’ for correct
installation by following paragraph 3.B.2.e. of
ASB AS350–67.00.43. If the wiring routing is
incorrect, before further flight, correct the
wiring routing by following paragraph
3.B.2.f. of ASB AS350–67.00.43.
(6) For helicopters with optional Autopilot
‘‘81K’’ and without MOD 073222 installed:
(i) Position relay ‘‘81K’’ on frame X1310 by
following paragraph 3.B.2.h. of ASB AS350–
67.00.43.
(ii) Inspect the routing of microswitch
electrical harness ‘‘53K’’ for correct
installation by following ASB AS350–
67.00.43, step 3.B.2.e. If the wiring routing is
incorrect, before further flight, correct the
wiring routing by following paragraph
3.B.2.f. of ASB AS350–67.00.43.
(f) Special Flight Permits
Special flight permits are prohibited.
(g) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Rotorcraft Standards
Branch, FAA, may approve AMOCs for this
AD. Send your proposal to: George Schwab,
Aviation Safety Engineer, Safety Management
Section, Rotorcraft Standards Branch, FAA,
10101 Hillwood Pkwy., Fort Worth, TX
76177; telephone 817–222–5110; email 9-
ASW-FTW-AMOC-Requests@faa.gov.
(2) For operations conducted under a 14
CFR part 119 operating certificate or under
14 CFR part 91, subpart K, the FAA suggests
that you notify your principal inspector, or
lacking a principal inspector, the manager of
the local flight standards district office or
certificate holding district office before
operating any aircraft complying with this
AD through an AMOC.
(h) Additional Information
(1) Eurocopter Alert Service Bulletin No.
05.00.49, Revision 3, dated March 8, 2012,
which is not incorporated by reference,
contains additional information about the
subject of this AD. For service information
identified in this AD, contact Airbus
Helicopters, 2701 N. Forum Drive, Grand
Prairie, TX 75052; telephone 972–641–0000
or 800–232–0323; fax 972–641–3775; or at
https://www.airbus.com/helicopters/services/
technical-support.html. You may view the
referenced service information at the FAA,
Office of the Regional Counsel, Southwest
Region, 10101 Hillwood Pkwy., Room 6N–
321, Fort Worth, TX 76177.
(2) The subject of this AD is addressed in
European Aviation Safety Agency (now
European Union Aviation Safety Agency)
(EASA) AD No. 2017–0035, dated February
20, 2017. You may view the EASA AD on the
internet at https://www.regulations.gov in the
AD Docket.
(i) Subject
Joint Aircraft Service Component (JASC)
Code: 7697, Engine Control System Wiring.
Issued on October 6, 2020.
Lance T. Gant,
Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2020–22744 Filed 10–14–20; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Office of the Under Secretary for
Economic Affairs
15 CFR Part 1500
[Docket No.: 200901–0230]
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
: Notice of proposed rulemaking.
SUMMARY
: Pursuant to the Concrete
Masonry Products Research, Education,
and Promotion Act of 2018 (the Act), the
Department of Commerce (Department)
solicits comments on proposed
procedures for conducting a referendum
to determine whether manufacturers of
concrete masonry units favor the
issuance of a proposed Concrete
Masonry Products Research, Education,
and Promotion Order (proposed order).
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
for concrete masonry products in the
domestic marketplace; and promote the
use of concrete masonry products in
construction and building. The
Department published the proposed
order in the Federal Register on August
24, 2020. The Act requires industry to
approve the proposed order via a
referendum. If industry approves the
proposed order, the Secretary of
Commerce (Secretary) will issue a final
order and appoint a Board to carry out
the duties prescribed by that order,
which would include an industry-
funded research, education, and
promotion program. The Department
also would follow these procedures for
any subsequent referendum under the
Act. This proposal also announces the
intent of the Department to request
approval by the Office of Management
and Budget (OMB) of two new
information collection requests (ICRs) to
support implementation of the
referendum.
DATES
: The Department must receive
comments November 16, 2020.
ADDRESSES
: Submit all electronic public
comments via the Federal e-Rulemaking
Portal. Go to
https://beta.regulations.gov/docket/
DOC-2020-0003 click the ‘‘Comment
Now!’’ icon, complete the required
fields, and enter or attach your
comments. The supporting economic
analysis is also available for comment
on regulations.gov.
All submissions, including
attachments and other supporting
materials, will become part of the public
record and subject to public disclosure.
The Department reserves the right to
publish relevant comments, unedited
and in their entirety. Do not include
personal information, such as account
numbers or Social Security numbers, or
names of other individuals. Do not
submit confidential business
information, or otherwise proprietary,
sensitive or protected information. We
will not post or consider comments that
contain profanity, vulgarity, threats, or
other inappropriate language or like
content.
Pursuant to the Paperwork Reduction
Act (PRA), send to the above address
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 collection of information.
In addition, send comments concerning
the information collection to OIRA_
Submission@omb.eop.gov or online at
https://www.reginfo.gov/public/do/
PRAMain.
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: mthompson1@doc.gov.
I. Legal Background
Pursuant to the Concrete Masonry
Products Research, Education, and
Promotion Act of 2018, 15 U.S.C. 8701
et seq., the Department is enacting a
research, education, and promotion
program (commonly referred to as a
checkoff program) for concrete masonry
products. 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). 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 US.C. 8713.
The Department’s actions to bring the
program to fruition will include: (1)
implementing an order that will
effectuate the purpose of the Act; (2)
conducting a referendum among the
industry to determine whether the
industry approves of being subject to the
implementing order; and, upon an
affirmative vote on the order, (3) issuing
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1
https://www.federalregister.gov/documents/
2020/08/24/2020-17515/concrete-masonry-
products-research-education-and-promotion-order.
2
‘‘Subject to.’’ Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriam-
webster.com/dictionary/subject%20to. Accessed 20
Jun. 2020.
the order and establishing a Board that
will carry out the provisions of the
order; and (4) performing continuing
oversight of the Board and program. An
industry group, the CMU Checkoff
Initiative, submitted a proposed order to
the Secretary on April 15, 2020. The
proposed order was made available for
comment in a separate proposed rule
published in the Federal Register on
August 24, 2020, at 85 FR 52059.
1
Under the Act, the Secretary must
conduct the referendum among eligible
manufacturers during the 60-day period
before the proposed order becomes
effective. 15 U.S.C. 8706(a)(1). The
Department interprets this to mean that
the referendum would be conducted
entirely within the 60-day period
preceding the effective date of the order,
but specifically requests comments on
this interpretation. The order shall
become effective only if the Secretary
determines that the order has been
approved by 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. 15 U.S.C. 8706(a)(2).
A manufacturer will be considered
eligible to vote if the manufacturer has
manufactured concrete masonry
products during a period of at least 180
days prior to the first day of the 30-day
period during which voting in the
referendum will occur. 15 U.S.C.
8706(b)(2). The Act directs the Secretary
to conduct the referendum ‘‘among
[eligible] manufacturers . . . subject to
assessments under section 8705 of this
title.’’ As explained below, only
manufacturers of concrete masonry
units are subject to assessment under
the Act.
The Act and the proposed order
distinguish between concrete masonry
products and concrete masonry units.
The Act defines concrete masonry
products to include a broader category
of products, including concrete masonry
units, as well as hardscape products
such as concrete pavers and segmental
retaining wall units, manufactured on a
block machine using dry-cast concrete.
Concrete masonry units are a type of
concrete masonry product with an
actual width of 3 inches or greater that
are manufactured from dry-cast concrete
using a block machine, including
concrete block and related concrete
units used in masonry applications.
Under the Act and the proposed order,
only manufacturers of concrete masonry
units are required to pay an initial rate
of assessment of $0.01 per concrete
masonry unit sold. 15 U.S.C. 8705(c)(1).
The Act does not define the phrase
‘‘subject to assessment’’ and therefore,
the Secretary must interpret the statute
to determine whether all manufacturers
of concrete masonry products should
participate in the referendum, or
whether only manufacturers of concrete
masonry units should participate. The
phrase ‘‘subject to assessment’’ could
mean: (1) Meeting only the eligibility
requirement described above (that is,
having manufactured concrete masonry
products during the 180-day period
prior to voting), or (2) both meeting the
eligibility requirement and being subject
to the initial rate of assessment. Under
interpretation (1), the referendum would
be conducted among all manufacturers
who had manufactured concrete
masonry products during the 180-day
period prior to voting. Under
interpretation (2), because the initial
rate of assessment is applied only to
concrete masonry units sold, the
referendum would be conducted among
all manufacturers who had
manufactured concrete masonry units
during the 180-day period prior to
voting.
Where a statute leaves a gap or is
ambiguous, courts will typically look to
see whether the agency’s interpretation
was reasonable in light of the text,
nature, and purpose of the statute. See,
e.g., Cuozzo Speed Techs., LLC v. Lee,
136 S. Ct. 2131, 2134 (U.S. June 20,
2016). In the absence of a statutory
definition, courts ‘‘construe a statutory
term in accordance with its ordinary or
natural meaning.’’ FDIC v. Meyer, 510
U.S. 471, 476 (1994). The most relevant
definition of ‘‘subject to’’ is ‘‘affected by
or possibly affected by’’ something.
2
Only manufacturers of concrete
masonry units will actually have to pay,
or be affected by, the initial rate of
assessment. The Department believes,
therefore, that the most natural reading
of the statute is that only concrete
masonry unit manufacturers are
‘‘subject to’’ assessment and therefore
eligible to participate in the referendum.
This reading is also consistent with
the stated purpose of the Act as
described in 15 U.S.C. 8701. Senate
Report 115–218 includes the
Congressional Budget Office’s (CBO)
estimate concerning the Act’s impacts,
and notes the following assumption:
The bill [S. 374] would apply to producers
of both concrete block and concrete pavers,
but CBO expects that only producers of
concrete block would participate in the
referendum. Because there is little
differentiation among concrete blocks across
manufacturers, all producers of concrete
blocks would benefit from an industry-wide
research and promotion program.
Manufacturers of concrete pavers, on the
other hand, are able to distinguish their
products in ways that allow consumers to
recognize individual brands. Consequently,
those producers have little incentive to
participate in an industry-wide marketing
effort. Based on information from
manufacturers of concrete pavers, CBO
expects that those producers would not
participate in the referendum.
Senate Report 115–218, at 4 (Mar. 22,
2018).
Based upon both the language and the
overarching purpose of the statute, and
because concrete masonry unit
manufacturers are currently the only
manufacturers who have an incentive to
participate in this program, the
Department interprets the Act to mean
that only manufacturers subject to the
initial rate of assessment are ‘‘subject to
assessment,’’ in accordance with
interpretation (2). Therefore, for the
initial referendum, an eligible
manufacturer would be a manufacturer
of concrete masonry units that is subject
to the initial rate of assessment, that is,
$0.01 per concrete masonry unit sold by
a manufacturer. See 15 U.S.C.
8705(c)(1).
II. Summary of Proposed Rule
The Department would conduct the
referendum. Each manufacturer eligible
to vote in the referendum would be
entitled to one vote. See 15 U.S.C.
8706(b)(1). 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. See 15 U.S.C.
8706(a)(2). Manufacturers would be
required to register by midnight of the
day prior to the start of the referendum
period in order to vote. See 15 U.S.C.
8706(c)(2). the Department would use
Employer Identification Numbers to
identify unique manufacturers.
The referendum would be conducted
by an agent, who would determine the
referendum period and would provide
notification to interested voters to allow
them to register prior to the referendum
period, as required by the Act. See 15
U.S.C. 8706(c)(2). The agent would
provide registration forms and ballots to
eligible voters and would provide
reasonable public notice of the
referendum. See 15 U.S.C. 8706(c)(4).
The agent would also collect and review
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3
See ‘‘Table of Small Business Size Standards
Matched to North American Industry Classification
System Codes’’ on the U.S. Small Business
Administration website.
4
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.
5
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.
all ballots and determine whether any
ballots are invalid and should not be
counted. Finally, the agent would
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 new
proposed order, voter eligibility would
be based on the scope of such proposed
order.
III. Request for Comments
The Department invites comments on
these procedures for conducting the
referendum to determine whether
manufacturers of concrete masonry
units favor issuance of the proposed
order.
Classification
Executive Order 12866
This rulemaking is not a significant
regulatory action under Executive Order
12866.
Executive Order 13771
This rule is not subject to the
requirements of Executive Order 13771,
because its likely impact is de minimis.
Executive Order 13132
This proposed rule does not contain
policies with Federalism implications as
defined in Executive Order 13132.
Regulatory Flexibility Act: Initial
Regulatory Flexibility 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. When an agency
publishes a proposed regulatory action,
it must either: (1) Certify that the action
will not have a significant adverse
impact on a substantial number of small
entities, and support such a certification
declaration with a factual basis,
demonstrating this outcome, or, (2) if
such a certification cannot be supported
by a factual basis, prepare and make
available for public review an Initial
Regulatory Flexibility Analysis (IRFA)
that describes the impact of the
proposed rule on small entities.
The IRFA for the proposed
referendum procedures follows below.
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
checkoff program would be established
by an order issued by the Secretary that
is subject to approval by an industry
referendum. 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. A
proposed order submitted by industry to
the Department on April 15, 2020,
triggered a referendum deadline of
approximately 8 months from
submission. The objectives of, and legal
basis for, the proposed rule is discussed
earlier in the preamble and are not
repeated here.
Number of Affected Entities
The proposed order 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 in this industry is
500 or fewer employees.
3
According to
Census data, there were 430 firms and
686 establishments engaged in concrete
block and brick manufacturing in 2017.
4
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 about 62 percent of
industry employment.
5
T
ABLE
3—B
LOCK AND
B
RICK
M
ANUFACTURERS
2017
BY
B
USINESS
S
IZE
Size of business by number of employees Number of
firms Number of
establishments Employment Estimated
receipts
($mils)
Annual
payroll
($mils)
Total ..................................................................................... 430 686 16,575 4,682 814
0–4 ....................................................................................... 92 92 173 56 9
5–9 ....................................................................................... 66 66 432 97 19
10–19 ................................................................................... 83 87 1,168 277 56
20–99 ................................................................................... 116 152 3,851 922 185
100–499 ............................................................................... 44 117 4,607 1,506 251
500+ ..................................................................................... 29 172 6,344 1,823 293
Source: U.S. Census Bureau 2017 County Business Patterns and 2017 Economic Census, Table US_6digitnaics_2017, released 01/06/2020.
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See the Occupational Outlook Handbook on the
Bureau of Labor Statistics website, https://
www.bls.gov/ooh/.
Costs 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’’.
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.
6
Thus, the Department
estimates that the cost to firms of
participating in the referendum will
average $38.03.
Paperwork Reduction Act
The information collection requests
(‘‘ICRs’’) in these proposed referendum
procedures have been submitted for
approval to OMB under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501
et seq. This section describes the new
ICRs and the estimated time to fulfill
each requirement. There are two new
ICRs associated with the proposed
referendum procedures—one dealing
with the voter registration process and
a second with the ballot that voters will
use during the referendum.
(1) Registration. The Act requires
manufacturers who wish to participate
in the referendum to register in advance
of the referendum period. The Secretary
will need adequate information from all
interested voters to determine whether
they are eligible to participate in the
referendum. The Department will
restrict the information request to that
information needed to ensure eligibility
of the requester 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
cavities in operation, their Employer
Identification Number, and similar
identifying information.
Estimated 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.
(2) Ballot. To conduct a referendum
the Department will issue ballots to
allow eligible voters to participate. The
ballot shall provide for recording
essential information, including that
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
request 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
cavities the manufacturer has in
operation, and similar verification
information.
Estimated 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.
As part of its continuing effort to
reduce paperwork and respondent
burden, the Department invites the
general public and other Federal
agencies to comment on proposed and/
or continuing information collections,
as required by the Paperwork Reduction
Act. The Department solicits comments
concerning: Whether these ICRs are
necessary for the proper performance of
the functions of the Department,
including whether the information has
practical utility; the accuracy of the
Department’s estimates of the burden of
the ICRs; the quality, utility, and clarity
of the information to be collected; and
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. The information
collection request may be viewed on the
Reginfo.gov website. Organizations and
individuals desiring to submit
comments on the collection of
information requirements should see the
ADDRESSES
section of this notice. The
final rule will respond to any public
comments on the ICRs contained in this
proposal. Notwithstanding any other
provision of the law, no person is
required to respond to, and no person
will be subject to penalty for failure to
comply with, a collection of information
subject to the requirements of the PRA,
unless that collection of information
displays a currently valid OMB control
number.
National Environmental Policy Act
This proposed rule will not
significantly affect the quality of the
human environment. Therefore, an
environmental assessment or
Environmental Impact Statement is not
required to be prepared under the
National Environmental Policy Act of
1969.
List of Subjects in 15 CFR Part 1500
Administrative practice and
procedure, Advertising, Consumer
information, Marketing agreements,
Concrete masonry promotion, Reporting
and recordkeeping requirements.
For the reasons stated in the
preamble, the Under Secretary for
Economic Affairs proposes to amend 15
CFR part 1500, proposed to be added
August 24, 2020, at 85 FR 52059, as set
forth below:
PART 1500—CONCRETE MASONRY
RESEARCH, EDUCATION, AND
PROMOTION
1. The authority citation for part 1500
continues to read as follows:
Authority: 15 U.S.C. 8701–8717.
2. Add subpart B to read as follows:
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.
Subpart B—Referendum Procedures
§ 1500.100 General.
Agents will conduct a referendum in
accordance with this subpart.
§ 1500.101 Definitions.
In addition to the definitions found in
subpart A of this part, the following
definitions apply:
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Agent means the individual or
individuals the Secretary designates to
conduct the referendum.
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.
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.
Lead Executive means the individual
or individuals the Secretary designates
to oversee the conduct of the
referendum.
Referendum period means the period
of time, not less than 30 days, that the
Secretary or his agent determines
appropriate for conducting the
referendum.
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.
§ 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) The Secretary does not authorize
proxy voting. However, an officer or
employee of an eligible manufacturer,
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.
(f) Voters are to cast ballots by the
means specified by the Secretary.
(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.
§ 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 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 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.
Agents will not refuse a ballot to any
person who claims to be eligible to vote;
(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.
§ 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.
§ 1500.105 Ballots.
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 on the basis that:
(a) The ballot is blank, missing a vote,
has no signature;
(b) Both voting boxes are marked in
the vote section;
(c) The ballot is in a state that agents
cannot determine the vote; or
(d) The ballot has a name that is
different on the ballot from that of the
registered voter. (However, agents will
accept power of attorney votes with
proper documentation.)
§ 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,
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65293
Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules
1
85 FR 37399 (June 22, 2020).
2
The comments received in response to the
notification of inquiry are available at https://
www.regulations.gov/docketBrowser?rpp=25&so=
DESC&sb=comment
DueDate&po=0&dct=PS&D=COLC-2020-0010 and
on the Copyright Office website. Renewal petitions
are available at https://www.copyright.gov/1201/
2021/petitions/renewal/, and petitions for new
exemptions are available at https://
www.copyright.gov/1201/2021/petitions/proposed/.
References to renewal petitions and comments are
by party name (abbreviated where appropriate) and
a brief identification of the previously granted
exemption, followed by either ‘‘Renewal Pet.,’’
‘‘Supp.’’ (for comments supporting an exemption),
or ‘‘Opp.’’ (for comments opposing an exemption).
References to petitions for new exemptions are by
party name (abbreviated where appropriate), the
Office’s proposed class number, and ‘‘Pet.’’
3
17 U.S.C. 1201(a)(1)(C).
the kind of public notice given, and
other information the Lead Executive
finds pertinent to the analysis of the
referendum and its results.
§ 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.
§ 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 xxxx.
Dated: September 4, 2020.
Kenneth White,
Senior Policy Analyst, Under Secretary for
Economic Affairs.
[FR Doc. 2020–20035 Filed 10–14–20; 8:45 am]
BILLING CODE 3510–20–P
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 201
[Docket No. 2020–11]
Exemptions To Permit Circumvention
of Access Controls on Copyrighted
Works
AGENCY
: U.S. Copyright Office, Library
of Congress.
ACTION
: Notice of proposed rulemaking.
SUMMARY
: The United States Copyright
Office is conducting the eighth triennial
rulemaking proceeding under the Digital
Millennium Copyright Act (‘‘DMCA’’),
concerning possible temporary
exemptions to the DMCA’s prohibition
against circumvention of technological
measures that control access to
copyrighted works. In this proceeding,
the Copyright Office is considering
petitions for the renewal of exemptions
that were granted during the seventh
triennial rulemaking along with
petitions for new exemptions to engage
in activities not currently permitted by
existing exemptions. On June 22, 2020,
the Office published a notification of
inquiry requesting petitions to renew
existing exemptions and comments in
response to those petitions, as well as
petitions for new exemptions. Having
carefully considered the comments
received in response to that notification,
in this notice of proposed rulemaking
(‘‘NPRM’’), the Office announces its
intention to recommend each of the
existing exemptions for readoption. This
NPRM also initiates three rounds of
public comment on the newly-proposed
exemptions. Interested parties are
invited to make full legal and
evidentiary submissions in support of or
in opposition to the proposed
exemptions, in accordance with the
requirements set forth below.
DATES
: Initial written comments
(including documentary evidence) and
multimedia evidence from proponents
and other members of the public who
support the adoption of a proposed
exemption, as well as parties that
neither support nor oppose an
exemption but seek to share pertinent
information about a proposal, are due
December 14, 2020. Written response
comments (including documentary
evidence) and multimedia evidence
from those who oppose the adoption of
a proposed exemption are due February
9, 2021. Written reply comments from
supporters of particular proposals and
parties that neither support nor oppose
a proposal are due March 10, 2021.
Commenting parties should be aware
that rather than reserving time for
potential extensions of time to file
comments, the Office has already
established what it believes to be the
most generous possible deadlines
consistent with the goal of concluding
the triennial proceeding in a timely
fashion.
ADDRESSES
: The Copyright Office is
using the regulations.gov system for the
submission and posting of comments in
this proceeding. All comments are
therefore to be submitted electronically
through regulations.gov. The Office is
accepting two types of comments. First,
commenters who wish briefly to express
general support for or opposition to a
proposed exemption may submit such
comments electronically by typing into
the comment field on regulations.gov.
Second, commenters who wish to
provide a fuller legal and evidentiary
basis for their position may upload a
Word or PDF document, but such longer
submissions must be completed using
the long-comment form provided on the
Office’s website at https://
www.copyright.gov/1201/2021. Specific
instructions for submitting comments,
including multimedia evidence that
cannot be uploaded through
regulations.gov, are also available on
that web page. If a commenter cannot
meet a particular submission
requirement, please contact the Office
using the contact information below for
special instructions.
FOR FURTHER INFORMATION CONTACT
:
Regan A. Smith, General Counsel and
Associate Register of Copyrights, by
email at regans@copyright.gov, Kevin R.
Amer, Deputy General Counsel, by
email at kamer@copyright.gov, or Terry
Hart, Assistant General Counsel, by
email at tehart@copyright.gov. Each can
be contacted by telephone by calling
(202) 707–8350.
SUPPLEMENTARY INFORMATION
: On June
22, 2020, the Office published a
notification of inquiry requesting
petitions to renew current exemptions,
oppositions to the renewal petitions,
and petitions for newly proposed
exemptions in connection with the
eighth triennial section 1201
rulemaking.
1
In response, the Office
received thirty-two renewal petitions,
eight comments in opposition to
renewal of a current exemption, and
seven comments supporting renewal of
a current exemption.
2
These comments
are discussed further below. In addition,
the Office received twenty-six petitions
for new exemptions or expansion of
previously granted exemptions.
With this NPRM, the Office sets forth
the exemptions that it intends to
recommend for readoption without the
need for further development of the
administrative record, and outlines the
proposed classes for new exemptions for
which the Office initiates three rounds
of public comment.
I. Standard for Evaluating Proposed
Exemptions
As the notification of inquiry
explained, for a temporary exemption
from the prohibition on circumvention
to be granted through the triennial
rulemaking, it must be established that
‘‘persons who are users of a copyrighted
work are, or are likely to be in the
succeeding 3-year period, adversely
affected by the prohibition . . . in their
ability to make noninfringing uses
under [title 17] of a particular class of
copyrighted works.’’
3
To define an
appropriate class of copyrighted works,
the Office begins with the broad
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