The US Federal Register has published a final rule for the “Concrete Masonry Products Research, Education, and Promotion Order.” (Link). The rule is being issued pursuant to Public Law 115-254, the FAA Reauthorization Act of 2018, which is described as “An act to provide protections for certain sports medicine professionals, to reauthorize Federal aviation programs, to improve aircraft safety certification processes, and for other purposes.” In this case, one of the “other purposes” was set out in “DIVISION E—CONCRETE MASONRY,” the “Concrete Masonry Products Research, Education, and Promotion Act of 2018.”
The bill to create the program was introduced as S.374, 115th Congress, by Roy Blunt (R-MO) and Bill Nelson (D-FL), with 10 additional co-sponsors. A Senate Committee Report on the bill (Report 115-218) provides the following context:
PURPOSE OF THE BILL
The purpose of S. 374, the Concrete Masonry Products Research, Education, and Promotion Act of 2017, is to enable concrete masonry products manufacturers to establish, finance, and carry out a “check-off” program, a coordinated program of research, education, and promotion to improve, maintain, and develop markets for concrete masonry products.
BACKGROUND AND NEEDS
Concrete block is a durable product used in the construction of public infrastructure, commercial facilities, and homes. Virtually every congressional district has at least one concrete masonry producer, and nationwide the industry employs thousands of workers. The economic downturn, however, affected the industry.
Check-off programs are industry-wide, coordinated efforts to promote research, marketing, and education regarding specific cat egories of generic products. They allow producers of commodities to collect funds from their members to support promotion efforts. Promotion must be generic and cannot focus on a particular producer. Ultimately, check-off programs seek to improve the market position of commodities by expanding markets, increasing demand, and developing new uses for these products.
Currently, there are 35 commodity check-off programs in place (e.g., the programs that sponsor campaigns like ‘‘Got Milk?’’ and ‘‘Pork, the Other White Meat,’’ and ‘‘The Incredible, Edible Egg’’). These programs allow entire industries to pool their resources with non-branded commodities. While most check-off programs are agriculture-related, check-off programs for the propane and oil heat industries also exist. Because check-off campaigns traditionally involve agricultural commodities, the Department of Agriculture has authorized most of them. The Department of Commerce (DOC) would authorize the check-off program that S. 374 envisions. It would be the first commodity check-off program to be administered by the DOC.
SUMMARY OF PROVISIONS
S. 374 would build off of the long-established Federal check-off program for agricultural goods and would establish a similar program for concrete masonry products. The bill would direct the Secretary of Commerce (Secretary) to create a Concrete Masonry Products Board (Board). The Board’s mission would be to develop, finance, and carry out a collective research, education, and promotion campaign to maintain, strengthen, and expand the marketplace for concrete masonry products. Mandatory fees assessed on concrete masonry manufacturers would be collected by the Board and would finance these activities. Further, S. 374 would authorize the Secretary to issue other orders related to concrete masonry, subject to simple majority votes in referenda, and would provide the Secretary with numerous tools to implement and enforce the Act. S. 374 includes limitations on the obligation of funds, a Government Accountability Office (GAO) reporting requirement, and a requirement that the DOC study and report on the propriety of applying a commodity check-off program model to a non-agricultural industry.
The rule sets the initial contribution to the fund as $.01 per concrete masonry unit sold.
KEI (and CPTech before) has long advocated the use of research mandates to address the underfunding of R&D in areas of public interest, to overcome the systematic market failures associated with basic research or research produced as a public good, and to offset negative impact on R&D from measures to control excessive pricing of medical products. See: https://www.keionline.org/research-mandates, and KEI and Section 27 endorsed a submission on research mandates by Marcus Low and Kristanna Peris of TAC in 2016 to the UN Secretary General’s High Level Panel on Access to Medicines. (Link)
For research funded under new Order, rights in inventions and other intellectual property rights will be determined by contract.
§ 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.