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

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Comments in Support, With Recommendation Comment: One commenter noted that under the instruction found in 1500.103b 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 advancements 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.

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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 commenters 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
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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 1500.103e.
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.

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