Title 15—Commerce and Foreign Trade--Volume 1
PART 1500—CONCRETE MASONRY RESEARCH, EDUCATION, AND PROMOTION
§ 1500.0   Order.
Order means this subpart A, Concrete Masonry Products Research, Education, and Promotion Order.
§ 1500.1   Act.
Act means the Concrete Masonry Products Research, Education, and Promotion Act of 2018 (15 U.S.C. 8701 et seq.; Pub. L. 115-254, section 1301, 132 Stat. 3469-3485 (2018)), and any amendments thereto.
§ 1500.2   Block machine.
Block machine means a piece of equipment that utilizes vibration and compaction to form concrete masonry products.
§ 1500.3   Board.
Board means the “Concrete Masonry Products Board” established under § 1500.40 of this Order.
§ 1500.4   Cavity.
Cavity means the open space in the mold of a block machine capable of forming a single concrete masonry unit having nominal plan dimensions of 8 inches by 16 inches.
§ 1500.5   Concrete masonry products.
Concrete masonry products means a broader class 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.
§ 1500.6   Concrete masonry unit.
Concrete masonry unit means a concrete masonry product that is a manmade masonry unit having an actual width of 3 inches or greater and manufactured from dry-cast concrete using a block machine. Such term includes concrete block and related concrete units used in masonry applications.
§ 1500.7   Conflict of interest.
Conflict of interest means with respect to a member or employee of the Board, a situation in which such member or employee has a direct or indirect financial or other interest in a person that performs a service for, or enters into a contract with, for anything of economic value.
§ 1500.8   Department.
Department means the United States Department of Commerce.
§ 1500.9   Dry-cast concrete.
Dry-cast concrete means a composite material that is composed essentially of aggregates embedded in a binding medium composed of a mixture of cementitious materials (including hydraulic cement, pozzolans, or other cementitious materials) and water of such a consistency to maintain its shape after forming in a block machine.
§ 1500.10   Education.
Education means programs that will educate or communicate the benefits of concrete masonry products in safe and environmentally sustainable development, advancements in concrete masonry product technology and development, and other information and programs designed to generate increased demand for commercial, residential, multi-family, and institutional projects using concrete masonry products and to generally enhance the image of concrete masonry products.
§ 1500.11   Geographic regions.
Geographic Regions means the groupings of states as delineated in this Order (at § 1500.40(c)), for the purpose of supporting research, education, and promotion plans and projects.
§ 1500.12   Machine cavities.
Machine cavities means the cavities with which a block machine could be equipped.
§ 1500.13   Machine cavities in operation.
Machine cavities in operation means those machine cavities associated with a block machine that have produced concrete masonry units within the last six months of the date set for determining eligibility and is fully operable and capable of producing concrete masonry units.
§ 1500.14   Manufacturer.
Manufacturer means any person engaged in the manufacturing of commercial concrete masonry products in the United States.
§ 1500.15   Masonry unit.
Masonry unit means a noncombustible building product intended to be laid by hand or joined using mortar, grout, surface bonding, post-tensioning or some combination of these methods.
§ 1500.16   [Reserved]
§ 1500.17   Person.
Person means any individual, group of individuals, partnership, corporation, association, cooperative or any other entity.
§ 1500.18   Promotion.
Promotion means any action, including paid advertising, to advance the image and desirability of concrete masonry products with the express intent of improving the competitive position and stimulating sales of concrete masonry products in the marketplace.
§ 1500.19   Research.
Research means studies testing the effectiveness of market development and promotion efforts, studies relating to the improvement of concrete masonry products and new product development, and studies documenting the performance of concrete masonry.
§ 1500.20   Secretary.
Secretary means the Secretary of the United States Department of Commerce.
§ 1500.21   United States.
United States means the several States and the District of Columbia.
§ 1500.40   Establishment and membership.
(a) The Board is hereby established to carry out a program of generic promotion, research, and education regarding concrete masonry products. The Board shall consist of manufacturers and of not fewer than 15 and not more than 25 members appointed by the Secretary, from nominations submitted as set forth in § 1500.41. No employee of an industry trade organization exempt from tax under paragraph (3) or (6) of section 501(c) of the Internal Revenue Code of 1986 representing the concrete masonry industry or related industries shall serve as a member of the Board and no member of the Board may serve concurrently as an officer of the board of directors of a national concrete masonry products industry trade association.
(b) The initial Board and all subsequent Boards, unless modified by the Board as provided in paragraph (d) of this section, shall be subject to the following:
(1) To ensure fair and equitable representation of the concrete masonry products industry, the composition of the Board shall reflect the geographical distribution of the manufacture of concrete masonry products in the United States, the types of concrete masonry products manufactured, and the range in size of manufacturers in the United States.
(2) No company or its affiliates shall have more than two members on the Board.
(c) To the extent possible, dependent on the nominees submitted, the Secretary will strive to appoint at least two members from each region. Similarly, the Secretary will strive to appoint at least one member from each of the following districts:
(d) Three years after the assessment of concrete masonry units commences pursuant to implementation of this Order, and at the end of each three-year period thereafter, the Board, subject to the review and approval of the Secretary, shall, if warranted, recommend to the Secretary the reapportionment of the Board membership to reflect changes in the geographical distribution of the manufacture of concrete masonry products and the types of concrete masonry products manufactured. Additionally, at any time, the Board may make recommendations to the Secretary to modify the composition of the regions and districts set forth in paragraph (c) of this section.
§ 1500.41   Nominations and appointments.
(a) For the initial Board, nominations shall be made and submitted to the Secretary by manufacturers. The Secretary shall consider the nominations submitted and other manufacturers for appointment, as the Secretary may deem appropriate. The Secretary shall appoint the members and alternate members of the initial Board.
(b) From the nominations, the Secretary shall appoint the 15-25 members of the Board and 6 alternate members of the Board within a reasonable time after receiving nominations. If a voting member vacates the appointment, the Secretary will appoint one of the alternate members to fill the unexpired term. The Secretary will provide the Board an opportunity to offer a nominee as successor to fill the term of the alternate member. In any case in which the Board fails to submit nominations for any open position, the Secretary shall appoint a member qualifying for the position under the criteria set forth in § 1500.40.
(c) As terms expire or vacancies occur among members and alternate members, nominations and those interested in being considered for Board membership, including self-nominations, may submit such nominations to the Board. For each expired or vacant position, the Board will evaluate the nominations received, verify the willingness of nominees to serve, and then will submit to the Secretary at least three nominees for each such position. The Secretary may also receive nominations and may forward them to the Board for their consideration. The Secretary is not bound by the recommendations of the Board; in selecting members, the Secretary will consider the recommendations of the Board, individual expertise, distribution of appointments, and more expansive input from sources available to the Secretary. For the initial Board, from the list of nominees not selected for appointment, the Secretary will choose and appoint six alternate members for the Board. Alternate members will be non-voting members of the Board.
§ 1500.42   Term of office.
(a) Board members and any alternates will serve for a term of three years, except for the initial members as described below. Board members and any alternates will be able to serve a maximum of two consecutive three-year terms and may serve additional terms, of up to two consecutive three-year terms, after rotating off the Board. When the Board is first established, the initial members will be assigned initial terms of two, three and four years. Initial terms will be staggered to assure continuity. Each term of office will end on December 31, with new terms of office beginning on January 1. Members serving the initial terms of two and three years will be eligible to serve a second term of three years.
(b) Thereafter, each of the positions will carry a full three-year term. Notwithstanding the limitations on consecutive terms, a Board member or alternate Board member may continue to serve until a successor is appointed by the Secretary.
§ 1500.43   Vacancies.
Should any Board member position become vacant, an alternate will be appointed by the Secretary for the remainder of the term. Successors to fill the unexpired terms of the former alternate member shall be appointed in the manner specified in § 1500.41.
§ 1500.44   Disqualification.
(a) In the event that any Board member or alternate Board member who was appointed as a manufacturer ceases to qualify as a manufacturer, such Board member or alternate Board member shall be disqualified from serving on the Board. The replacement may be at the Secretary's initiative or the Board may recommend to the Secretary that the member be removed.
(b) If a member of the Board consistently refuses to perform the duties of a member of the Board, or if a member of the Board engages in acts of dishonesty or willful misconduct, the Board may recommend to the Secretary that the member be removed from office.
(c) All members serve at the pleasure of the Secretary.
§ 1500.45   Procedure.
(a) The Board will meet at least annually. A Board meeting will be conducted only when a quorum is present. A majority of the Board members will constitute a quorum. If participation by telephone or other means is permitted, members participating by such means shall count as present in determining quorum or other voting requirements set forth in this section.
(b) At the start of each fiscal period, the Board will select a Chair, Vice- Chair, Secretary-Treasurer and other officers as appropriate who will serve in leadership roles throughout that period.
(c) The Board will provide members and manufacturers a minimum of 14 days advance notice of all Board meetings.
(d) Each Board member will be entitled to one vote on any matter put to vote, and the motion will carry if supported by one vote more than 50 percent of the total votes represented by the Board members participating, with the exception of the affirmative vote of two-thirds of voting members required to change the assessment rate as specified in § 1500.51(c).
(e) The Board may form committees as necessary. Committees may consist of individuals other than Board members. Committee members shall serve without compensation.
(f) When the Board Chair determines that a vote outside a convened Board meeting is necessary, such vote may take place via electronic means only if members are given fourteen days prior notice, and if a majority of the voting Board members participate prior to the established deadline. Any action so taken shall have the same force and effect as though such action had been taken at a regularly convened meeting of the Board.
(g) All votes shall be recorded in Board minutes.
(h) There shall be no voting by proxy.
(i) Board members shall each have one vote. Alternate members shall not vote. The Chair and all Board officers shall be elected from voting members of the Board.
(j) The organization of the Board and the procedures for the conducting of meetings of the Board shall be in accordance with its bylaws, which shall be established by the Board and approved by the Secretary.
(k) Meetings of the Board and committees may be conducted by electronic communications, provided that each member and committee member, if such committee member is not a member of the Board, is given prior written notice of the meeting and has the opportunity to be present either physically or by electronic connection.
§ 1500.46   Compensation and reimbursement.
(a) Members and any alternates of the Board shall serve without compensation.
(b) If approved by the Board, members or alternates shall be reimbursed for reasonable travel expenses, which may include per diem allowance or actual subsistence incurred while away from their homes or regular places of business in the performance of services for the Board.
§ 1500.47   Powers and duties.
The Board shall have the following powers and duties:
(a) To administer this Order in accordance with its terms and conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the Board;
(c) To make such rules as may be necessary to administer this Order, including activities to be carried out under this Order;
(d) To meet, organize, and select from among the members of the Board a Chair, Vice Chair, Secretary-Treasurer and other officers, committees, and subcommittees, and to vest in such committees and subcommittees such responsibilities and authorities as the Board determines to be appropriate;
(e) To establish regional committees to administer regional initiatives;
(f) To recommend to the Secretary modifications to the geographical regions as described in § 1500.40(c);
(g) To establish working committees of persons other than Board members;
(h) To employ persons, other than the members, as the Board considers necessary to assist the Board in carrying out its duties and to determine the compensation and specify the duties of such persons;
(i) To prepare and submit for the approval of the Secretary a budget as described in § 1500.50(a);
(j) To borrow funds necessary for the startup expenses of this Order;
(k) To develop and carry out generic research, education, and promotion programs and projects relating to concrete masonry products, and to pay the costs of such programs and projects with assessments collected under § 1500.51 and other income of the Board as provided under §§ 1500.50(j) and 1500.62;
(l) To enter into contracts or agreements which must be approved by the Secretary before becoming effective, for the development and carrying out of programs or projects of research, education, and promotion relating to concrete masonry products, including with manufacturer associations or other entities as considered appropriate by the Secretary;
(m) To develop programs and projects, and enter into contracts or agreements related thereto, which must be approved by the Secretary before becoming effective, targeted specifically toward the Geographic Regions described in § 1500.40(c) to be recommended by the relevant regional committees for marketing and research projects to benefit manufacturers in such Geographic Regions pursuant to the goals of any programs or projects as set forth under this Order. The contracts or agreements related to such programs and projects as described in this § 1500.46(m) shall be subject to the requirements of all contracts or agreements described in § 1500.46(l);
(n) To keep minutes, books, and records that reflect the actions and transactions of the Board, and promptly report minutes of each Board meeting to the Secretary;
(o) To maintain such records and books and prepare and submit such reports and records from time to time to the Secretary as the Secretary may prescribe and to make the records available to the Secretary for inspection and audit; to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it; and to keep records that accurately reflect the actions and transactions of the Board;
(p) At the end of each fiscal year and at such other times as the Secretary may request, to have the books and records audited by an independent auditor and submit a report of the audit directly to the Secretary;
(q) To give the Secretary the same notice of meetings of the Board and committees as is given to members, including committee members if committee members are not members of the Board, in order that the Secretary's representative(s) may attend such meetings, and to keep and report minutes of each meeting of the Board and all committees to the Secretary;
(r) To furnish to the Secretary any information or records that the Secretary may request;
(s) To receive, investigate, and report to the Secretary all complaints of violations of this Order;
(t) To recommend to the Secretary such amendments to this Order as the Board considers appropriate;
(u) To recommend adjustments to the assessments as provided in this Order;
(v) To notify manufacturers of all Board meetings through press releases or other means;
(w) To invest assessments collected under this Order in accordance with § 1500.50; and
(x) To periodically prepare and make available to the public and manufacturers reports of its activities and, at least once each fiscal period, to make public an accounting of funds received and expended.
§ 1500.48   Prohibited activities.
(a) The Board shall not engage in any program or project to, nor shall any funds received by the Board under the Act be used to:
(1) Influence legislation, elections, or governmental action;
(2) Engage in an action that would be a conflict of interest;
(3) Engage in advertising that is false or misleading;
(4) Engage in any research, education, or promotion that would be disparaging to other construction materials; or
(5) Engage in any promotion or project that would benefit any individual manufacturer.
(b) Paragraph (a) of this section does not preclude:
(1) The development and recommendation of amendments to the Order;
(2) The communication to appropriate government officials of information relating to the conduct, implementation, or results of research, education, and promotion activities under the Order except communications described in paragraph (a)(1) of this section; or
(3) Any lawful action designed to market concrete masonry products directly to a foreign government or political subdivision of a foreign government.
§ 1500.50   Budget and expenses.
(a) Prior to the beginning of each fiscal year, and during the fiscal year as may be necessary, the Board shall prepare and submit to the Secretary for approval a budget for the fiscal year covering its anticipated expenses and disbursements in administering this Order, including the probable cost of each promotion, research, and education activity proposed to be developed or carried out by the Board and a section that annotates and explains any shortcomings, overruns, and shift of funds from the previous year's budget. Such budget shall be deemed approved if the Secretary fails to approve or reject the budget within 60 days of receipt, unless the Secretary proposes to the Board and to Congress, reasonable justification for the delay and provides a reasonable date by which approval or disapproval will be made. The Department may provide such justification in any written format.
(b) In addition to paragraph (a) of this section, each such budget shall include:
(1) A statement of objectives and strategy for each program, plan, or project, with a comparative for the preceding year—annotating the success and explaining the shortcomings of the preceding year's programs, plans, and projects
(2) A summary of anticipated revenue, with comparative data for at least one preceding year (except for the initial budget);
(3) A summary of proposed expenditures for each program, plan or project; and
(4) Staff and administrative expense breakdowns, with comparative data for at least one preceding year (except for the initial budget).
(c) Each budget shall provide adequate funds to defray its proposed expenditures.
(d) Subject to this section, any amendment or addition to an approved budget must be approved by the Secretary, including shifting funds from one program or project to another. A shift of funds from one approved category to another, and not exceeding 10% of the funds in either category, which does not cause an increase in the Board's approved budget and which is consistent with governing bylaws need not have prior approval by the Secretary. If the Secretary fails to approve or reject a budget, or an amendment or addition to an approved budget, within 60 days of receipt, such budget shall be deemed approved, unless the Secretary provides to the Board and to Congress, in writing, reasonable justification for the delay and provides a reasonable date by which approval or disapproval will be made. The Department may provide such justification in any written format.
(e) The Board is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by the Board for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this Order. Such expenses shall be paid from funds received by the Board.
(f) Limitations on obligation of funds:
(1) In each fiscal year, through fiscal year 2030, the Board may not obligate an amount greater than the sum of—
(i) 73 percent of the amount of assessments estimated to be collected under § 1500.51 in such fiscal year);
(ii) 73 percent of the amount of assessments actually collected under § 1500.51 in the most recent fiscal year for which an audit report has been submitted as of the beginning of the fiscal year for which the amount that may be obligated is being determined, less the estimate made pursuant to paragraph (e)(1) of this section for such most recent fiscal year; and
(iii) Amounts permitted in preceding fiscal years to be obligated that have not been obligated.
(iv) For fiscal years 9 and 10 (ending September 2028 and 2029) there is a special rule for estimates. Specifically, the amounts estimated to be collected shall be 62 percent of the amount of assessments actually collected in the most recent fiscal year for which an audit report has been submitted as of the beginning of the fiscal year for which the amount be obligated is being determined.
(2) Assessments collected in excess of the amount permitted to be obligated in a fiscal year shall be deposited in an escrow account until the end of the 11th fiscal year or September 2030.
(3) Prior to the end of the 11th fiscal year or September 30, 2030, the Board may not obligate, expend, or borrow against amounts deposited in the escrow account. Any interest earned on such amounts shall be deposited in the escrow account and shall be unavailable for obligation until the end of the 11th fiscal year or September 30, 2030.
(g) With approval of the Secretary, the Board may borrow money for the payment of administrative expenses, subject to the same fiscal, budget and audit controls as other funds of the Board. Any funds borrowed by the Board shall be expended only for startup costs and capital outlays.
(h) The Board shall reimburse the Secretary for all expenses incurred by the Secretary in the implementation, administration and supervision of this Order, including all referendum costs in connection with this Order.
(i) Following the third fiscal year of operation of the Board, the total cost of collection of expenses and administrative staff incurred by the Board during any fiscal year shall not exceed 10 percent of the projected total assessments to be collected and other income received by the Board for that fiscal year after any fees owed to the Department are paid. Reimbursements to the Secretary required under paragraph (g) of this section are excluded from this limitation on spending.
(j) Pending disbursement of assessments and all other revenue under a budget approved by the Secretary, the Board may invest assessments and all other revenues collected under this section in:
(1) Obligations of the United States or any agency of the United States;
(2) General obligations of any state or any political subdivision of a state;
(3) Interest bearing accounts or certificates of deposit of financial institutions that are members of the Federal Reserve System; or
(4) Obligations fully guaranteed as to principal interest by the United States.
(k) Investment income and revenue earned under paragraph (i) of this section are earnings obtained from assessments that are subject to budget approval under paragraph (a) of this section.
§ 1500.51   Assessments.
(a) The collection of assessments on concrete masonry units will be the responsibility of the manufacturer who sells the concrete masonry units. There shall be an assessment on the first sale of concrete masonry units only and not on subsequent sales of concrete masonry units already assessed. The manufacturer will be required to collect and remit its individual assessments no less than quarterly. Manufacturers shall identify the total amount due in assessments on all sales receipts, invoices or other commercial documents of sale as a result of the sale of concrete masonry units. Within 180 days of their initial meeting, the Board will provide for review and approval by the Secretary a proposed evaluation and compliance program and its plan to evaluate program effectiveness and to verify compliance with the Act. The evaluation and compliance program will provide the method and metrics that will help determine program effectiveness and will outline the way the Board will receive assessments, how they will verify compliance, determine the best method to track sales, and how to document all actions including the process by which the Board will use to ensure it meets or exceeds the legislatively-mandated disbursement of received assessments.
(b) Such assessments shall be levied at a rate of $0.01 per concrete masonry unit sold by a manufacturer. The Board may make assessments effective as of the effective date of this Order. Submission of funds may be made to the Board within 60 days of the end of the first quarter after the Board is established; thereafter submission of funds will be to the board within 60 days of the end of each quarter.
(c) At any time following the conduct of the initial referendum conducted pursuant to this Order, the assessment rate will be reviewed by the Board and, upon the affirmative vote of two-thirds of voting members of the Board, may be modified; provided that the assessment rate may be raised to a maximum of $0.05 cents per unit, that only one increase may be implemented in any one-year period, and each individual increase may not exceed $0.01
(d) Not less than 50 percent of the assessments (less administration expenses) paid by a manufacturer shall be used to support research, education, and promotion programs and projects in support of the Geographic Region of the manufacturer.
(e) All assessment payments and reports will be submitted to the Board quarterly. All quarterly payments are to be received no later than 60 days after the conclusion of each quarter. A late payment charge shall be imposed on any manufacturer who fails to remit to the Board the total amount for which any such manufacturer is liable on or before the due date established by the Board. In addition to the late payment charge, an interest charge shall be imposed on the outstanding amount for which the manufacturer is liable. The rate of interest and late payment charges shall be specified by the Secretary.
(f) Manufacturers failing to remit total assessments due in a timely manner may also be subject to actions under Federal debt collection procedures.
(g) The Board may authorize other organizations to collect assessments on its behalf with the approval of the Secretary.
(h) The Board shall provide manufacturers submitting assessments under this Order with the opportunity to apply for rebates on assessments remitted to the Board for concrete masonry units not covered by this Order and for assessments remitted to the Board for concrete masonry units sold to a purchaser that subsequently failed to remit payment due to bankruptcy, bad debt or other reasons causing the money intended to be collected from such sale to be uncollectible. Those requesting rebates in such circumstances must provide all necessary documentation as the Board shall determine.
§ 1500.60   Programs and projects.
(a) The Board shall receive and evaluate, or on its own initiative develop, and submit to the Secretary for approval any program or project authorized under this Order. Such programs or projects shall be consistent with the purpose of the Act ( see 15 U.S.C. 8701) and provide for:
(1) The establishment of annual research, education, and promotion objectives and metrics for each fiscal year. Objectives and performance metrics should consider and where possible reflect those listed in 15 U.S.C. 8716 (Study and report by the Government Accounting Office).
(2) The establishment, issuance, effectuation and administration of appropriate programs for research, education, and promotion with respect to concrete masonry products; and
(3) The establishment and conduct of research with respect to the image, desirability, use, marketability, quality or production of concrete masonry products, to the end that the marketing and use of concrete masonry products may be encouraged, expanded, improved or made more acceptable and to advance the image, desirability or quality of concrete masonry product.
(b) No program or project shall be implemented prior to its approval by the Secretary. Once a program or project is so approved, the Board shall take appropriate steps to implement it. If the Secretary fails to approve or reject a contract or agreement for a program or project within 60 days of receipt, the contract or agreement shall be deemed approved, unless the Secretary provides to the Board and to Congress, in writing, reasonable justification for the delay and provides a reasonable date by which approval or disapproval will be made. The Department may provide such justification in any written format. Any such contract or agreement shall provide that:
(1) The contractor or agreeing party shall develop and submit to the Board a program or project together with a budget or budgets that specifies the cost to be incurred to carry out the program or project;
(2) The contractor or agreeing party shall keep accurate records of all its transactions and make periodic reports to the Board of activities conducted, submit accounting for funds received and expended, and make such other reports as the Secretary or the Board may require;
(3) The Secretary may audit the records of the contracting or agreeing party periodically;
(4) Any subcontractor who enters into a contract with a Board contractor and who receives or otherwise uses funds allocated by the Board shall be subject to the same provisions as the contractor; and
(5) The contract or agreement shall become effective on the approval of the Secretary.
(c) Each program or project implemented under this Order shall be reviewed or evaluated periodically by the Board to ensure that it contributes to an effective program of research, education, or promotion. If it is found by the Board that any such program or project does not contribute to an effective program of research, education, or promotion, then the Board shall, with the approval of the Secretary, terminate such program or project.
(d) Any educational or promotional activity undertaken with funds provided by the Board shall include a statement that such activities were supported in whole or in part by the Board.
(e) Every 2 years the Board shall prepare and make publicly available a comprehensive and detailed report that includes an identification and description of all programs and projects undertaken by the Board during the previous 2 years as well as those planned for the subsequent 2 years and detail the allocation or planned allocation of Board resources for each such program or project. Such report shall also include:
(1) The overall financial condition of the Board;
(2) A summary of the amounts obligated or expended during the 2 preceding fiscal years; and
(3) A description of the extent to which the objectives of the Board were met according to the metrics required under § 1500.50.
§ 1500.61   Independent evaluation.
The Board shall authorize and fund an independent evaluation of the effectiveness of this Order and other programs conducted by the Board beginning five years after October 5, 2018, and every 3 years thereafter. The Board shall submit to the Secretary, and make available to the public, the results of each periodic independent evaluation conducted under this paragraph.
§ 1500.62   Patents, copyrights, trademarks, information, publications, and product formulations.
Ownership and allocation of rights to patents, copyrights, inventions, or publications, developed through the use of non-Federal funds remitted to the Board under the Order shall be determined by written agreement between the Board and the party(ies) receiving funds for the development of such inventions, patents, copyrights or publications.
§ 1500.70   Reports.
(a) Each manufacturer subject to this Order may be required to provide to the Board periodically such information as may be required by the Board, with the approval of the Secretary, which may include but not be limited to the following:
(1) Number and type of concrete masonry units manufactured;
(2) Number and type of concrete masonry units on which an assessment was paid;
(3) Name and address of the manufacturer; and
(4) Date assessment was paid on each concrete masonry unit sold.
(b) All reports required under this section are due to the Board 60 days after the end of each quarter.
(c) All reports or information submitted pursuant to this paragraph shall be subject to the confidentiality restrictions in § 1500.72.
§ 1500.71   Books and records.
Each manufacturer subject to this Order shall maintain and make available for inspection by the Secretary such books and records as are necessary to carry out the provisions of this Order, including such records as are necessary to verify any reports required. Such records shall be retained for at least 7 years beyond the fiscal period of their applicability.
§ 1500.72   Confidential treatment.
(a) Trade secrets and commercial or financial information that is privileged or confidential obtained from books, records, or reports under the Act, this Order shall be kept confidential by all persons, including all employees and former employees of the Board, all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Board members or manufacturers. Only those persons having a specific need for such information to effectively administer the provisions of this Order shall have access to such information. Such information may be disclosed only if the Secretary considers the information relevant; and the information is revealed in a judicial proceeding or administrative hearing brought at the direction or on the request of the Secretary or to which the Secretary or any officer of the Department is a party. Any officer, employee, or agent of the Department of Commerce or any officer, employee, or agent of the Board who willfully violates this paragraph shall be fined not more than $1,000 and imprisoned for not more than 1 year, or both. Nothing in this section shall be deemed to prohibit:
(1) The issuance of general statements based upon the reports of the number of persons subject to this Order or statistical data collected therefrom, which statements do not identify the information furnished by any person; and
(2) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this Order, together with a statement of the particular provisions of this Order violated by such person.
(b) For any officer, employee, or agent of the Department of Commerce, these provisions are consistent with and do not supersede, conflict with, or otherwise alter any obligations, rights, or liabilities created by existing statute or Executive order relating to classified information, communications to Congress, the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this Order and are controlling.
§ 1500.80   Right of the Secretary.
All fiscal matters, programs or projects, rules or regulations, reports, or other actions proposed and prepared by the Board shall be submitted to the Secretary for approval.
§ 1500.81   Referenda.
(a) A referendum will be held to determine whether manufacturers favor enactment of this Order. A manufacturer shall 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 period during which voting in the referendum will occur. For the initial referendum, an eligible person is a manufacturer of concrete units that is subject to the initial rate of assessment in § 1500.51. Each manufacturer eligible to vote in the referendum shall be entitled to one vote. This Order became effective after approval by a majority of manufacturers voting who also represent a majority of the machine cavities in operation of those manufacturers voting in the referendum.
(b) After the initial referendum, the Secretary shall conduct a referendum upon the request of the Board, or effective beginning November 30, 2026, and at 5-year intervals thereafter, by petition from not less than 25% of manufacturers eligible to vote. Each manufacturer eligible to vote in subsequent referenda shall be entitled to one vote. The Order will remain in effect if approved by a majority of manufactures voting who also represent a majority of the machine cavities in operation of those manufacturers voting in the referendum.
(c) For any new proposed order, voter eligibility will be based on the scope of such proposed order. A future proposed Order becomes effective if approved by a majority of manufacturers voting and any other criteria established by the Secretary based on the scope of such future proposed order.
§ 1500.82   Suspension or termination.
(a) The Secretary shall suspend or terminate an order or a provision of an order if the Secretary finds that an order or provision of an order obstructs or does not tend to effectuate the purpose of the Act, or if the Secretary determines that the order or a provision of an order is not favored by a majority of all votes cast in the referendum as provided in § 1500.81. If the Secretary suspends or terminates a provision of an order, the order remains in effect minus the suspended or terminated provision.
(b) If, as a result of a referendum conducted under § 1500.81 of this Order, the Secretary determines that the Order is not approved, the Secretary shall:
(1) Not later than 180 days after making the determination, suspend or terminate collection of assessments under this Order; and
(2) As soon as practical, suspend or terminate activities under this order in an orderly manner.
§ 1500.83   Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the termination of this Order, or the issuance of any amendment, shall not:
(a) Affect or waive any right, duty, obligation or liability which shall have arisen, or which may thereafter arise in connection with any provision of this Order;
(b) Release or extinguish any violation of this Order; or
(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any other persons, with respect to any such violation.
§ 1500.84   Notice and advance registration.
At least 30 days before a referendum is to be conducted under this Order, the Secretary shall notify all manufacturers of the period during which the referendum will occur through publication in the Federal Register. The notice shall explain any registration and voting procedures. A manufacturer who chooses to vote in any referendum conducted under this Order shall register with the Secretary prior to the voting period.
§ 1500.85   Personal liability.
No member or employee of the Board shall be held personally responsible, either individually or jointly with others, when they exercise their discretionary duties of their office, in good faith, while acting within the scope of their authority, to any person for errors in judgment, either of commission or omission, as such member or employee, except for acts of dishonesty or willful misconduct
§ 1500.86   Separability.
If any provision of this Order is declared invalid or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this Order or the applicability thereof to other persons or circumstances shall not be affected thereby.
§ 1500.87   Amendments.
The Secretary may, from time to time, amend an Order. Amendments to this Order may be proposed from time to time by the Board or by any interested person affected by the provisions of the Act, including the Secretary. The provisions of the Act applicable to an order shall be applicable to any amendment to this Order.
§ 1500.88   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 0605-0028.
§ 1500.100   General.
Agents will conduct a referendum in accordance with this subpart.
§ 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.
§ 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, 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.
§ 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.
§ 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.
(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 § 1500.102(e), the Secretary does not authorize proxy voting. 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, 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 0605-0029.