15 U.S.C. § 8704 — Required terms in orders

(a) In general: Any order issued under this chapter must contain the terms and provisions this section describes. (b) Concrete Masonry Products Board: The order must set up a Board to carry out generic promotion, research, and education about concrete masonry products. Establishment and membership: The Board must have between 15 and 25 members, appointed by the Secretary from nominations submitted as the order describes. All members must be manufacturers. No employee of a tax-exempt industry trade organization (under section 501(c)(3) or (6) of title 26) representing the concrete masonry industry or related industries may serve, and no member may also be an officer of a national concrete masonry trade association's board of directors. Only 2 people from any one company or its affiliates may serve on the Board at once. Distribution of appointments: The Board's makeup must fairly reflect where manufacturers are located, what kinds of products they make, and the range of company sizes in the U.S. Starting 3 years after assessments begin, and every 3 years after that, the Board — subject to the Secretary's review and approval — can recommend reapportioning Board seats to match changes in geography or product types. Nominations process: The Secretary may make appointments from nominations manufacturers submit, following the method the order sets. Failure to appoint: If the Secretary doesn't appoint someone within 60 days of receiving nominations, the first nominee is automatically deemed appointed — unless the Secretary gives the Board and Congress reasonable justification for the delay and a reasonable date for a decision. Alternates: The order must provide for the Secretary to select alternate Board members under procedures the order specifies. Terms: Members and alternates normally serve 3-year terms, though the first group's terms are staggered at not more than 2, 3, and 4 years, as the order specifies. No one may serve more than 2 consecutive terms, though each member keeps serving until a successor is appointed. Vacancies are filled as the order provides. Disqualification from Board service: If a member or alternate who was appointed as a manufacturer stops qualifying as one, they are disqualified from the Board. Compensation: Members and alternates serve without pay, but if the Board approves, they may be reimbursed for reasonable travel expenses, including per diem or actual living costs while away from home on Board business. (c) Powers and duties of the Board: The order must specify the Board's powers and duties, including the power and duty to: administer the order and collect assessments; develop and recommend bylaws and rules to the Secretary for approval, including for activities under the order; meet and select a chairperson, other officers, committees, and subcommittees; establish regional organizations or committees for regional initiatives; establish working committees of people who aren't Board members; employ staff (other than members) and set their pay and duties; prepare and submit, before each fiscal year, proposed assessment rates and an annual budget of expected expenses, including the likely cost of each promotion, research, and information activity, for the Secretary's approval; borrow funds needed for the order's startup expenses; carry out and pay for generic research, education, and promotion programs using assessments; enter into contracts or agreements, subject to subsection (e), for such programs; keep minutes, books, and records of Board actions, and promptly report meeting minutes to the Secretary; receive, investigate, and report violations of the order to the Secretary; give the Secretary information the Secretary requests; recommend order amendments to the Secretary; and give the Secretary advance notice of meetings so the Secretary or a representative can attend. (d) Programs and projects; budgets; expenses: Programs and projects: The order must require the Board to submit any research, education, or promotion program or project to the Secretary for approval. Any educational or promotional activity funded by the Board must include a statement that it was supported in whole or in part by the Board. Budgets: The order must require the Board to submit a budget of anticipated expenses and disbursements, including projected program costs, to the Secretary for approval, before each fiscal year and as often as needed afterward. If the Secretary doesn't approve or reject a budget within 60 days of receiving it, the budget is deemed approved — unless the Secretary gives the Board and Congress written justification for the delay and a reasonable decision date. Administrative expenses: The Board may incur budgeted and other administrative, maintenance, and functioning expenses as the Secretary authorizes, paid from assessments, assessment earnings, and other Board income; any funds the Board borrows may only be spent on startup costs and capital outlays. Starting with fiscal years beginning 3 or more years after the Board is established, the Board may not spend more than 10 percent of its yearly assessment and other income on administration (except reimbursing the Secretary), maintenance, and functioning of the Board. The order must require the Board to reimburse the Secretary, from assessments, for all expenses the Secretary incurs implementing, administering, and supervising the order, including referenda costs. (e) Contracts and agreements: With the Secretary's approval, the order must let the Board (A) enter into contracts and agreements to carry out generic research, education, and promotion programs, including with manufacturer associations or other entities the Secretary considers appropriate; (B) enter into contracts and agreements for administrative services; and (C) pay for approved programs using assessments, assessment earnings, and other Board income. Each contract or agreement must require the other party to: develop and submit a proposed program and budget to the Board; keep accurate records of transactions; account for funds received and spent; make periodic reports to the Board on activities; and make any other reports the Board or Secretary considers relevant. If the Secretary doesn't approve or reject a contract or agreement within 60 days of receiving it, it is deemed approved — unless the Secretary gives the Board and Congress written justification for the delay and a reasonable decision date. (f) Books and records of Board: The order must require the Board to maintain books and records the Secretary may inspect and audit, to collect and submit information the Secretary requests, and to account for the receipt and disbursement of all funds it possesses or controls. The order must also require the Board's books and records to be audited yearly by an independent auditor, with the audit report submitted directly to the Secretary. (g) Prohibited activities: Subject to the exceptions in paragraph (2), the Board — and any funds it receives under this chapter — may not be used to: (A) influence legislation, elections, or governmental action; (B) engage in a conflict of interest; (C) run false or misleading advertising; (D) run promotion, research, or education that disparages other construction materials; or (E) run any promotion or project that benefits any individual manufacturer. Exceptions: this doesn't stop the Board from (A) developing and recommending amendments to the order, (B) communicating to government officials about the order's activities, implementation, or results (except communications described in (1)(A)), or (C) taking lawful action to market concrete masonry products directly to a foreign government or its political subdivision. (h) Periodic evaluation: The order must require the Board to provide for independent evaluation of all its research, education, and promotion programs, beginning 5 years after October 5, 2018, and every 3 years after that, and to submit the results to the Secretary and make them available to the public. (i) Objectives: The Board must set annual research, education, and promotion objectives and performance metrics for each fiscal year, subject to the Secretary's approval. (j) Biennial report: Every 2 years the Board must prepare and publish a detailed report identifying and describing all its programs and projects from the past 2 years, plus those planned for the next 2, and detailing the Board's actual or planned resource allocation for each. The report must also cover: (1) the Board's overall financial condition; (2) a summary of amounts obligated or spent during the previous 2 fiscal years; and (3) how well the Board met the objectives required under subsection (i). (k) Books and records of persons covered by order: In general: The order must require manufacturers to (A) keep records sufficient to show compliance with the order and its regulations, and (B) make those records available, during normal business hours, for inspection by Board or Department employees or agents. Time requirement: Records must be kept for whatever period the Secretary prescribes. Confidentiality of information: Except as this paragraph otherwise provides, trade secrets and privileged or confidential commercial or financial information reported to, or obtained by, the Board or Secretary may not be disclosed by Department or Board officers, employees, or agents. This information may be disclosed only if the Secretary considers it relevant and it is revealed in a judicial proceeding or administrative hearing brought at the Secretary's or Department's direction or request, or to which the Secretary or a Department officer is a party. This paragraph doesn't prohibit issuing general statements based on combined information that doesn't identify any single person's data, or publishing, at the Secretary's direction, the name of a violator and the specific order provisions violated. Any Department or Board officer, employee, or agent who willfully violates this confidentiality rule may be fined up to $1,000 and imprisoned up to 1 year, or both. Withholding information: This subsection doesn't authorize withholding information from Congress.