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Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
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. 8706c1.
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.

SUPPLEMENTARY INFORMATION:

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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
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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/bureausand-offices/ousea/concrete-masonrycheckoff or by email request to Checkoff@doc.gov. 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. 600611, 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.

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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.

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