Concrete Masonry Products Research, Education and Promotion Order; Referendum Procedures
| Published date | 03 May 2021 |
| Citation | 86 FR 23271 |
| Record Number | 2021-08891 |
| Section | Rules and Regulations |
| Court | The Under-secretary For Economic Affairs Office |
Federal Register, Volume 86 Issue 83 (Monday, May 3, 2021)
[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 http://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
