Status Report

Final Rule: NASA Grant and Cooperative Agreement Handbook–Miscellaneous

By SpaceRef Editor
October 26, 2001
Filed under ,

[Federal Register: October 26, 2001 (Volume 66, Number 208)]
[Rules and Regulations]
[Page 54120-54125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc01-5]

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1260

NASA Grant and Cooperative Agreement Handbook–Miscellaneous
Changes

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

———————————————————————–

SUMMARY: This is a final rule amending the NASA Grant and Cooperative
Agreement Handbook to make administrative and editorial changes;
clarify internal documentation requirements; delete the requirement for
quarterly forecasts of recipient cash requirements; and clarify the
submission requirements for NASA Form 1206, “Assurance of Compliance
with the National Aeronautics and Space Administration Regulations
Pursuant to Nondiscrimination in Federally Assisted Programs”.

EFFECTIVE DATE: October 26, 2001.

FOR FURTHER INFORMATION CONTACT: Eugene Johnson, NASA Headquarters,
Office of Procurement, Analysis Division (Code HC), (202) 358-4703, e-
mail: [email protected]

SUPPLEMENTARY INFORMATION:

A. Background

The current provision at Sec. 1260.26, Financial Management,
advised recipients that NASA would phase-in the adoption of an
automated SF 272 system not requiring forecast estimates with a
projected date of October 1, 2001, for implementation. This automated
system change will be effective October 1, 2001, and the submission
requirements for forecast estimates is revised to reflect this
implementation. Clarification of submission requirements for NASA Form
1206 “Assurance of Compliance with the National Aeronautics and Space
Administration Regulations Pursuant to Nondiscrimination in Federally
Assisted Programs” as well as editorial changes to Part 1260, Exhibit
E–Special Conditions for Cooperative Agreements between NASA and
Commercial Space Centers are made. Internal documentation required by
the grant officer prior to award is amended to include any data
deliverables that may be required when potentially hazardous
operations, such as those related to flight and/or mission critical
ground

[[Page 54121]]

systems have been proposed. Lastly, Sec. 1260.10 is amended to clarify
that signature by the Authorizing Institutional Representative on the
proposal Cover Page may confirm that all necessary certifications and
assurances are met.

B. Regulatory Flexibility Act

NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small business entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the
changes made by this rule are only clarifications of existing
requirements.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because this final rule
does not impose any recordkeeping or information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 14 CFR Part 1260

Grant Programs–Science and Technology.

Tom Luedtke,
Associate Administrator for Procurement.

Accordingly, 14 CFR part 1260 is amended as follows:
1. The authority citation for 14 CFR 1260 continues to read as
follows:

Authority: 42 U.S.C. 2473(c)(1), Pub. L. 97-258, 96 Stat. 1003
(31 U.S.C. 6301 et seq.), and OMB Circular A-110.

PART 1260–GRANTS AND COOPERATIVE AGREEMENTS

2. Amend Sec. 1260.10 by revising paragraphs (c)(1) and (4) to read
as follows:

Sec. 1260.10 Proposals.

* * * * *
(c) * * *
(1) Grant officers are required to ensure that all necessary
certifications, disclosures, and assurances have been obtained prior to
awarding a grant or cooperative agreement. In order to reduce paper
work required by the submitting institutions, and as directed by NASA;
signature by the Authorizing Institutional Representative on the
proposal Cover Page may confirm that all necessary certifications and
assurances are met.
* * * * *
(4) Each application for funding must contain assurances on NASA
Form 1206, or specifically identify and make reference to an assurance
that the recipient’s programs and activities comply with civil rights
and nondiscrimination statutes specified in 14 CFR parts 1250 through
1253. The assurances provided on NASA Form 1206 shall suffice for all
proposals of an applicant, if they remain current and accurate. An
applicant may incorporate these assurances by reference in subsequent
applications to NASA.

Sec. 1260.11 [Amended]

3. In Sec. 1260.11, amend the last sentence in paragraph (b) by
adding “and any data deliverables that may be required when
potentially hazardous operations, such as those related to flight and/
or mission critical ground systems have been proposed (e.g. Payload
Safety Data Review Package)” directly after the word
“documentation,”.

Sec. 1260.22 [Amended]

4. In the introductory text to Sec. 1260.22, amend the last
sentence by adding “(e.g. Payload Safety Data Review)” directly after
the word “requirements”.

5. Section 1260.26 is amended by revising the date of the provision
and paragraph (a) to read as follows:

Sec. 1260.26 Financial management.

Financial Management

October 2001
(a) Effective October 1, 2001, advance payments by electronic funds
transfer will be made by the Financial Management Office of the NASA
Center which issued the grant in accordance with procedures provided to
the recipient. The Recipient shall submit Federal Cash Transaction
Reports (SF 272) to the aforementioned office and to the Administrative
Grant Officer (if NASA has delegated administration) within 15 working
days following the end of each Federal Fiscal quarter. The final SF 272
is due within 90 days after the expiration date of the grant. The final
SF 272 shall be submitted to the Financial Management Office, with
copies sent to the NASA Grant Officer.
* * * * *

6. In the Appendix to Subpart A of Part 1260, add Exhibit E to read
as follows:

Exhibit E–Special Conditions for Cooperative Agreement Between NASA
and the Commercial Space Centers

The following Space Development and Commercial Research (SDCR)
Special Conditions are required to be included in full text for all
SDCR Grants and Cooperative Agreements in addition to the General
Conditions in the NASA Grant and Cooperative Agreement Handbook. Any
changes or additions to these Special Conditions must be approved by
the Office of Procurement, NASA Headquarters, Procurement Operations
Division, Code HS, prior to the award of the agreement.

Commercial Space Centers Program Grants/Cooperative Agreements

Intellectual Property

Patent Rights

October 2001

(a) Definitions.
(1) “Administrator” means the Administrator or Deputy
Administrator of NASA.
(2) “Invention” means any invention or discovery which is or
may be patentable or otherwise protectable under Title 35 of the
United States Code.
(3) “Made” when used in relation to any invention means the
conception or first actual reduction to practice such invention.
(4) “Nonprofit organization” means a domestic university or
other institution of higher education or an organization of the type
described in Section 501(c)(3) of the Internal Revenue Code of 1954
(26 U.S.C. 501(c) and exempt from taxation under Section 501(a) of
the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic
nonprofit scientific or educational organization qualified under a
State nonprofit organization statute.
(5) “Practical application” means to manufacture, in the case
of a composition or product; to practice, in the case of a process
or method; or to operate, in the case of a machine or system; and,
in each case, under such conditions as to establish that the
invention is being utilized and that its benefits are, to the extent
permitted by law or Government regulations, available to the public
on reasonable terms.
(6) “Recipient” means:
(i) The signatory Recipient party or parties; or
(ii) The Consortium, where a Consortium has been formed for
carrying out Recipient responsibilities under this agreement.
(7) “Small Business Firm” means a domestic small business
concern as defined at 15 U.S.C. 632 and implementing regulations of
the Administrator of the Small Business Administration. (For the
purpose of this definition, the size standard contained in 13CFR
121.901 through 121.911 will be used.)
(8) “Subject Invention” means any invention of a Recipient
and/or Government employee conceived or first actually reduced to
practice in the performance of work under this Agreement.
(b) Allocation of Principal Rights.
(1) Patent Rights: Retention by Grantee–CSC Program.
This Patent Rights Special Condition applies only to Commercial
Space Centers Program Grants/Cooperative Agreements and takes
precedence over any other patent provisions for NASA grants and
cooperative agreements.
This grant is subject to the Patent Rights (Small Business Firms
and Nonprofit Organizations) clause at 37 CFR 401.14 (“the
clause”) with the following modifications:

[[Page 54122]]

(i) Where the term “contract” or “contractor” is used in the
clause, those terms shall be read as “grant” and “grantee,”
respectively.
(ii) Where the term “Federal Agency,” “agency” or “funding
Federal Agency” is used in the clause, the term shall be read as
“NASA.”
(iii) The following sentence is added to paragraph (d)(2) of the
clause:
Notwithstanding the above, the Grantee shall not be required to
convey title to an invention in a foreign country if the contractor
has filed for patent applications in a substantial number of
industrialized countries.
(iv) The NASA regulation applicable to paragraph (e) of the
clause is at 37 CFR part 404 “Licensing of Government
OwnedInventions.”
(v) The following subparagraphs are added to paragraph (e) of
the clause:
(4) NASA agrees that in accordance with 35 U.S.C. 205 it will
not disclose or release to third parties pursuant to requests under
the Freedom of Information Act or otherwise copies of any document
which NASA obtained under this clause which is part of an
application for patent with the U.S. Patent and Trademark Office or
any foreign patent office filed by the Grantee (or its assignees,
licensees, or employees) on a subject invention to which the Grantee
has elected to retain title.
(5) NASA agrees that in accordance with 35 U.S.C. 205 it will
not disclose or release to third parties pursuant to requests under
the Freedom of Information Act or otherwise any invention disclosure
submitted under paragraph (c), above, for a reasonable time in order
for the Grantee to file a patent application on any subject
invention in which it has elected or retains the right to elect
retention of title. For purposes of this paragraph, a reasonable
time shall be the time during which an initial patent application
may be filed under paragraph (c) of this clause; provided, however,
that NASA may make disclosure at its discretion if it finds that the
same information has been previously published by the inventor,
Grantee, or otherwise.
(6) Nothing in subparagraphs (4) and (5) of this paragraph (e)
shall preclude NASA’s publishing or distributing as part of its
regular technical information dissemination programs materials
describing a subject invention to the extent such materials were
provided as part of a technical report or other submissions of the
Grantee which were submitted without restrictions independently of
the requirements of this clause. Furthermore, nothing in
subparagraphs (4) and (5) of this paragraph (e) shall preclude NASA
from releasing the subparagraphs to other contractors of NASA on a
confidential or restricted distribution basis if such documents are
relevant to the work being performed by those contractors.
(vi) The following subparagraph is added to paragraph (f) of the
clause:
(5) the Grantee shall include a list of all subject inventions
required to be disclosed during the preceding year in the technical
progress report, renewal proposal, or annual status report, and a
complete list (or a negative statement) for the entire award period
shall be included in the final report.
(vii) Pursuant to paragraph (g)(2) of the clause, the following
subparagraphs (3) and (4) are added to paragraph (g), and shall be
used in all subcontracts, regardless of tier, for the performance of
research, experimental, developmental, design or engineering work in
the United States, its possessions, or Puerto Rico, by other than a
nonprofit organization or small business firm.
(3) Notwithstanding subparagraph (1), above, the Grantee will
consult and obtain the approval of NASA for the Patent Rights clause
to be used in any subcontract to be performed outside of the United
States, its possessions, or Puerto Rico.
(4) Notwithstanding subparagraph (1), above, and in recognition
of the Grantee’s obligation to obtain and maintain private support
for the CSC established under this Cooperative Agreement, the
Grantee is authorized, subject to the rights of NASA set forth
elsewhere in this clause, to:
(a) Acquire by negotiation and mutual agreement rights to a
subcontractor’s subject inventions as the Grantee may deem necessary
to obtaining and maintaining of such private support; and
(b) Request, in the event of inability to reach agreement
pursuant to (a), above, that NASA invoke exceptional circumstances
as necessary pursuant to 37 CFR 401.3(a)(2) if the prospective
subcontractor is a small business firm or nonprofit organization, or
for all other organizations, request that such rights for the
Grantee be included as an additional reservation in a waiver granted
pursuant to 14 CFR 1245.1. Any such requests to NASA should be
prepared in consideration of the following guidance and submitted to
the Grants Officer (see also paragraph (9)).
(i) Exceptional circumstances: A request that NASA make an
“exceptional circumstances” determination pursuant to 37 CFR
401.3(a)(2) must state the scope of rights sought by the Grantee
pursuant to such determination; identify the proposed subcontractor
and the work to be performed under the subcontract; and state the
need for the determination.
(ii) Waiver petition: The subcontractor should be advised that
unless it requests a waiver of title pursuant to the NASA Patent
Waiver Regulations (14 CFR 1245.1), NASA will acquire title to the
subject invention (42 U.S.C. 2457, as amended, Sec. 305). If a
waiver is not requested or granted, the Grantee may request a
license from NASA (see Licensing of NASA inventions, 14 CFR 1245.3).
A subcontractor requesting a waiver must follow the procedures set
forth in the NASA FAR Supplement clause at 18-52.227-71 (48 CFR
1852.227-71), “Requests for Waiver of Rights to Inventions.” The
terms “Contractor” and “contracting officer” shall be read as
“Grantee” and “Grants Officer,” as appropriate. Should the
Grantee desire that an additional reservation regarding Grantee’s
rights, in accordance with paragraph (4)(b) of this Special
Condition, be considered with the waiver request, both the potential
subcontractor and the Grants Officer should be informed.
(viii) Paragraph (l) Communications, is completed to read as
follows:
(l) Communications.
A copy of all submissions or requests required by this clause,
plus a copy of any reports, manuscripts, publications, or similar
material bearing on patent matters, shall be sent to the
installation Patent Counsel in addition to any other submission
requirements in the Grant provisions. If any reports contain
information describing a subject invention for which the Grantee has
elected or may elect title, NASA will use reasonable efforts to
delay public release by NASA or publication by NASA in a NASA
technical series, for six months from the date of receipt, in order
for patent applications to be filed, provided that the Grantee
identifies the information and the subject invention to which is
relates at the time of submittal. If required by the Grants Officer,
the Grantee shall provide the filing date, serial number and title,
a copy of the patent application, and a patent number and issue date
for any subject invention in any country in which the Grantee has
applied for patents.
(ix) With respect to paragraph (l) of the clause, Grantee is
hereby given permission to assign rights to subject inventions in
the United States, provided the assignee agrees that any products
embodying an assigned subject invention or produced through use of a
subject invention will be manufactured substantially in the United
States. However, an individual clause by the requirement for such an
agreement may be waived by NASA upon a showing that reasonable but
unsuccessful efforts have been made to assign rights on similar
terms to potential assignees that would be likely to manufacture
substantially in the United States or that under the circumstances
domestic manufacture is not commercially feasible.
(2) Patent Rights: NASA Inventions.
NASA will use reasonable efforts to report inventions made by
NASA employees as a consequence of, or which bear a direct relation
to, the performance of specified NASA activities under this
cooperative agreement and, upon timely request, NASA will use all
reasonable efforts to grant the Recipient or designated Consortium
Member (if applicable) an exclusive or partially exclusive,
revocable, royalty-bearing license, on terms to be subsequently
negotiated, for any patent applications and patents covering such
inventions, and subject to the license reserved in paragraph
(b)(5)(i) of this section. Upon application in compliance with 37
CFR part 404–Licensing of Government Owned Inventions, the
Recipient or each Consortium Member (if applicable), shall be
granted a revocable, nonexclusive, royalty-free license in each
patent application filed in any country on a subject invention and
any resulting patent in which the Government acquires title. Each
nonexclusive license may extend to subsidiaries and affiliates, if
any, within the corporate structure of the licensee and includes the
right to grant sublicenses of the same scope to the extent the
licensee was legally obligated to do so at the time the cooperative
agreement was signed.
(3) Patent Rights: NASA Contractor Inventions.
In the event NASA contractors are tasked to perform work in
support of specified NASA activities under this cooperative

[[Page 54123]]

agreement and inventions are made by contractor employees, and NASA
has the right to acquire or has acquired title to such inventions,
NASA will use reasonable efforts to report such inventions and, upon
timely request, NASA will use all reasonable efforts to grant the
Recipient or designated Consortium Member (if applicable) an
exclusive or partially exclusive, revocable, royalty-bearing
license, upon terms to be subsequently negotiated, for any patent
applications and patents covering such inventions, and subject to
the license reserved in paragraph (b)(5)(ii) of this section. Upon
application in compliance with 37 CFR part 404–Licensing of
Government Owned Inventions, the Recipient or each Consortium Member
(if applicable), shall be granted a revocable, nonexclusive,
royalty-free license invention and any resulting patent in which the
Government acquires title. Each nonexclusive license may extend to
subsidiaries and affiliates, if any, within the corporate structure
of the licensee and includes the right to grant sublicenses of the
same scope to the extent the licensee was legally obligated to do so
at the time the cooperative agreement was signed.
(4) Patent Rights: Joint NASA and Recipient Inventions.
NASA and Recipient agree to use reasonable efforts to identify
and report to each other any inventions made jointly between NASA
employees (or employees of NASA contractors) and employees of
Recipient.
(i) For other than small business firms and nonprofit
organizations the Administrator may agree that the United States
will refrain from exercising its undivided interest in a manner
inconsistent with Recipient’s commercial interest and to cooperate
with Recipient in obtaining patent protection on its undivided
interest on any waived inventions subject, however, to the condition
that Recipient makes its best efforts to bring the invention to the
point of practical application at the earliest practicable time. In
the event that such efforts are not undertaken, the Administrator
may void NASA’s agreement to refrain from exercising its undivided
interest and grant licenses for the practice of the invention so as
to further its development. In the event that the Administrator
decides to void NASA’s agreement to refrain from exercising its
undivided interest and grant licenses for this reason, notice shall
be given to the Inventions and Contributions Board as to why such
action should not be taken. Either alternative will be subject to
the applicable license or licenses reserved in paragraph (b)(5) of
this section.
(ii) For small business firms and nonprofit organizations, NASA
may assign or transfer whatever rights it may acquire in a subject
invention from its employee to the Recipient as authorized by 35
U.S.C. 202(e).
(5) Minimum rights reserved by the Government. Any license or
assignment granted Recipient pursuant to paragraphs (b)(2), (b)(3),
or (b)(4) of this section will be subject to the reservation of the
following licenses:
(i) As to inventions made solely or jointly by NASA employees,
the irrevocable, royalty-free right of the Government of the United
States to practice and have practiced the invention by or on behalf
of the United States; and
(ii) As to inventions made solely by, or jointly with, employees
of NASA contractors, the rights in the Government of the United
States as set forth in paragraph (b)(5)(i) of this section, as well
as the revocable, nonexclusive, royalty-free license in the
contractor as set forth in 14 CFR 1245.108.
(6) Preference for United States manufacture. The Recipient
agrees that any products embodying subject inventions or produced
through the use of subject inventions shall be manufactured
substantially in the United States. However, in individual cases,
the requirement to manufacture substantially in the United States
may be waived by the Associate Administrator for Procurement (Code
HS) with the concurrence of the Associate General Counsel for
Intellectual Property upon a showing by the Recipient that under the
circumstances domestic manufacture is not commercially feasible.
(7) Work performed by the Recipient under this cooperative
agreement is considered undertaken to carry out a public purpose of
support and/or stimulation rather than for acquiring property or
services for the direct benefit or use of the Government.
Accordingly, such work by the Recipient is not considered “by or
for the United States” and the Government assumes no liability for
infringement by the Recipient under 28 U.S.C. 1498.
(8) Property Rights in Inventions–CSC Program.
(i) This cooperative agreement or any subcontracts issued
thereunder with other than a nonprofit organization or small
business firm as defined in 35 U.S.C. 201, are subject to Section
305 of the National Aeronautics and Space Act of 1958 (42 U.S.C.
2457) relating to property rights in inventions. The term
“invention” includes any invention, discovery, improvement, or
innovation. Any invention made in the performance of work under this
cooperative agreement or any subcontract issued thereunder shall be
presumed to have been made under the conditions of and subject to
Section 305(a) of the Act and becomes the exclusive property of the
United States subject, however, to the retention by the recipient or
subcontractor of a royalty-free license to practice the invention
pursuant to, and of the scope defined in, 14 CFR 1245.108. This
license may be revoked under the conditions set forth in the Patent
Licensing Regulations (37 CFR part 404). The recipient or applicable
subcontractor may petition for waiver of title to the invention in
accordance with the NASA Patent Waiver Regulations, 14 CFR part
1245, subpart 1.
(ii) The recipient or applicable subcontractor shall furnish to
NASA a written report containing full and complete technical
information concerning any invention made in the performance of any
work under this cooperative agreement or any applicable subcontract
promptly upon the making of such invention; and if waiver of title
has been granted, shall state whether or not the recipient or
subcontractor intends to file or has filed patent applications
thereon. Upon written request by NASA, the recipient or applicable
subcontractor shall furnish additional information available to it,
and shall secure the execution of such documents as may be necessary
to enable the Administrator, NASA, to file and prosecute patent
applications on any such invention for which NASA has retained
title. Upon completion of the work under this cooperative agreement,
the recipient or applicable subcontractor, shall furnish to NASA a
report as to whether or not the recipient or subcontractor has
filed, or intends to file, patent applications on such inventions.
(iii) All reports required by this clause, and its application,
should be directed to the Patent Counsel or Intellectual Property
Counsel of the NASA installation that has been assigned the
responsibility of administering (technical monitoring and
performance evaluation) the CSC grant/cooperative agreement of which
this contract or subcontract is a part.

(End of Provision)

Rights in Data–CSC Program

October 2001

This Rights in Data Special Condition applies only to the
Commercial Space Centers (CSC) Grants and Cooperative Agreements and
takes precedence over any other Rights in Data provisions for NASA
grants and cooperative agreements.
(a) Definitions. As used in this provision:
“CSC Data” means data first produced by a Grantee in the
performance of this cooperative agreement, which data are not
generally known, and which data without obligation as to its
confidentiality have not been made available to others by the
Grantee or are not already available to the Government.
“CSC Rights” means the respective rights of the Grantees and
the Government in the CSC data as set forth in paragraph (d) of this
provision.
“Computer Software” means computer programs, computer
databases, and documentation thereof.
“Data” means recorded information, regardless of form or the
media on which it may be recorded. The term includes technical data
and computer software. The term does not include information
incidental to grant administration, such as financial,
administrative, cost or pricing or management information.
“Form, Fit, and Function Data” means data relating to items,
components, or processes that are sufficient to enable physical and
functional interchangeability, as well as identifying source, size,
configuration, mating and attachment characteristics, functional
characteristics, and performance requirements, except that for
computer software it means data identifying source, functional
characteristics, and performance requirements but specifically
excludes the source code, algorithm, process, formulae, and flow
charts of the software.
“Limited-Rights Data” means data (other than computer
software) developed at private expense that embody trade secrets or
are

[[Page 54124]]

commercial or financial and confidential or privileged.
“Restricted Computer Software” means computer software
developed at private expense and that is a trade secret; is
commercial or financial and confidential or privileged; or is
published, copyrighted computer software, including modifications of
such computer software.
“Technical Data” means that data which are of a scientific or
technical nature.
“Unlimited Rights” means the right of the Government to use,
disclose, reproduce, prepare derivative works, distribute copies to
the public, perform publicly, display publicly, in any manner and
for any purpose whatsoever, and to have or permit others to do so.
(b) Allocation of Rights.
(1) Except as provided in paragraph (c) below regarding
copyright, the Government shall have unlimited rights in–
(i) Data specifically identified in this grant as data to be
delivered without restriction;
(ii) All other data delivered under this grant unless provided
otherwise for CSC data in accordance with paragraph (d) below or for
limited-rights data or restricted computer software in accordance
with paragraph (f) below.
(2) The Government shall have a royalty-free license to use, and
to authorize support service contractors acting on its behalf to
use, delivered CSC data to the extent permitted, and consistent with
the disclosure prohibitions, set forth in paragraph (d) below.
(3) The Grantee shall have the rights to–
(i) Protect CSC rights in any CSC data delivered under this
grant in the manner and to the extent provided in paragraph (d)
below:
(ii) Withhold from delivery those data which are limited-rights
data or restricted computer software to the extent provided in
paragraph (f) below;
(iii) Substantiate use of, add, or correct CSC rights or
copyrights notices and to take other appropriate action, in
accordance with paragraph (e) below; and
(iv) Establish claim to copyright subsisting in data first
produced in the performance of this agreement to the extent provided
in subparagraph (c)(1) below.
(4) Data first produced by NASA: As to Data first produced by
NASA in carrying out NASA’s responsibilities under this cooperative
agreement and which Data would embody trade secrets or would
comprise commercial or financial information that is privileged or
confidential if it had been obtained from the Recipient, will be
marked with an appropriate legend and maintained in confidence for
an agreed to period of up to ( ) years [insert a period up to 5
years] after development of the information, with the express
understanding that during the aforesaid period such Data may be
disclosed and used (under suitable protective conditions) by or on
behalf of the Government for government purposes only, and
thereafter for any purpose whatsoever without restriction on
disclosure and use. Recipient agrees not to disclose such Data to
any third party without NASA’s written approval, until the
aforementioned restricted period expires.
(5) Oral and visual information. If information which the
Recipient considers to embody trade secrets or to comprise
commercial or financial information which is privileged or
confidential is disclosed orally or visually to NASA such
information must be reduced to tangible recorded form (i.e.,
converted into Data as defined herein), identified and marked with a
suitable notice or legend, and furnished to NASA within 10 (ten)
days after such oral or visual disclosure, or NASA shall have no
duty to limit or restract, and shall not incur any liability for,
any disclosure and use of such information.
(6) Disclaimer of Liability. Notwithstanding the above, NASA
shall not be restricted in, nor incur any liability for, disclosure
and use of:
(i) Data not identified with a suitable notice or legend as set
in paragraph (d)(2) of this section; nor
(ii) Information contained in any Data for which disclosures and
use are restricted under paragraphs (b)(2) or (3) of this section,
if such information is or becomes generally known without breach of
the above, is known to or generated by NASA independently of
carrying out responsibilities under this agreement, is rightfully
received from a third party without restriction, or is included in
data which Participant has, or is required to furnish to the U.S.
Government without restriction on disclosure and use.
(7) Marking of Data. Any Data delivered under this cooperative
agreement, by NASA or the Recipient, shall be marked with a suitable
notice or legend indicating the Data was generated under this
cooperative agreement.
(c) Copyright.
(1) Data first produced in the performance of this agreement.
Except as otherwise specifically provided in this agreement, the
Grantee may establish claim to copyright subsisting in any data
first produced in the performance of this grant. If claim to
copyright is made, the Grantee shall affix the applicable copyright
notice of 17 U.S.C. 401 or 402 and acknowledgment of Government
sponsorship (including grant number) to the data when such data are
delivered or deposited for registration as a published work in the
U.S. Copyright Office. For data other than computer software the
Grantee grants to the Government, and others acting on its behalf, a
paid-up nonexclusive, irrevocable, worldwide license to reproduce,
prepare derivative works, distribute copies to the public, and
perform publicly and display publicly, by or on behalf of the
Government, for all such data. For computer software, the Grantee
grants to the Government, and others acting on its behalf a paid-up,
nonexclusive, irrevocable, worldwide license for all such computer
software to reproduce, prepare derivative works, and perform
publicly and display publicly, by or on behalf of the Government.
(2) Data not first produced in the performance of this
agreement. The Grantee shall not, without prior written permission
of the Grants Officer, incorporate in data delivered under this
grant any data that are not first produced in the performance of
this grant and that contain the copyright notice of 17 U.S.C. 401
and 402, unless the Grantee identifies such data and grants to the
Government, or acquires on its behalf, a license of the same scope
as set forth in subparagraph (1) above.
(3) Removal of copyright notices. The Government agrees not to
remove any copyright notices placed on data pursuant to this
paragraph (c) and to include such notices on all reproductions of
the data.
(d) Rights in CSC Data.
(1) The rights of the Government and the Grantee in CSC data
shall be as set forth below.
(2) NASA shall have the right, at any time up to the two years
after completion or termination of this agreement to obtain delivery
of CSC data, either by express requirement in this grant or specific
request by the Grants Officer. If such requirement or request for
delivery is made, the Grantee is authorized to affix the following
“CSC Rights Notice” to any CSC data delivered under this agreement
and the Government will thereafter treat the data, subject to the
provisions of paragraph (e) below, in accordance with such Notice.

CSC Rights Notice

October 2001

These CSC data are furnished with CSC rights under Grant/
Cooperative Agreement No.__. The Government agrees to use these data
only for government purposes for five years effective November 1,
1996. These data shall not be disclosed outside the Government
(including disclosure for procurement purposes) during such period
without the express written permission of the Grantee, except that,
subject to the limitations of this Notice, such data may be
disclosed for use by support service contractors. After the
aforesaid period the Government shall have unlimited rights in these
data.

(End of Notice)

(3)(i) The Grantee shall assure that the CSC Rights Notice is
placed on the data as soon as practicable after the data is
generated and reduced to some tangible, recorded form as defined by
the term “data” in paragraph (a), but in any event no later than
the earlier of either the date of delivery of the data to NASA or
the release of the data by the Grantee or its CSC organization,
including any subcontractors thereof where applicable to others
outside of the Grantee’s, its CSC, or subcontractor’s organization.
(ii) The Grantee is authorized to insert up to 7 (seven) years
(from the date certain) in the Notice. Longer periods may be
authorized by NASA, case-by-case, for specifically identified data
items, upon approval of the Grants Officer. Such longer periods will
normally require that NASA have the right to make the data available
to other responsible parties, on reasonable terms and conditions, in
the event the Grantee, its licensees, or assigns have not taken, or
are not expected to take in a reasonable time, effective steps to
achieve commercial utilization of any item, component, or process to
which the data pertains. The “date certain” to be inserted in the
Notice shall be no later than the date the Notice is affixed to the
data.
(iii) The Grantee is authorized to make the CSC Rights Notice
October 2001 applicable to

[[Page 54125]]

previously produced data (that qualifies as CSC data), provided that
such data has not been released to others or furnished to NASA with
any previously prescribed Notice. Further, the Grantee is authorized
to substitute the July 1990 Notice for any previously prescribed
Notice for any data that has been released to others or delivered to
NASA provided that: (A) The Grantee identifies the data; (B) the
protection afforded such data under the previously described Notice
is still in force; and (C) the recipient (other than NASA) agrees to
the substitution, or in the case of NASA, the Grants Officer is
requested to make the substitution for specifically identified data.
In this latter, event, the effective data inserted in the Notice
shall be the Grantee’s best estimate of the date the data was
released to others or furnished to NASA.
(4) The Government shall have unlimited rights at the end of the
period set forth in the “CSC Rights Notice,” as to any CSC data
delivered in accordance with subparagraph (2), above, provided,
however, that if the Grantee or any of its licensees or assigns have
plans and intentions to pursue commercial utilization of any items,
components or processes (including computer software) which any
delivered CSC data discloses, the aforesaid period will be expended
for such data up to an additional 5 (five) years upon request made
at any time prior to the end of the period provided in the “CSC
Rights Notice.”
(e) Omitted or Incorrect Markings.
(1) Data delivered to the Government without any notice
authorized by paragraph (d) above, and without a copyright notice,
shall be deemed to have been furnished with unlimited rights, and
the Government assumes no liability for the disclosure, use, or
reproduction of such data. However, to the extent the data have not
been disclosed without restriction outside the Government, the
Grantee may request, within 6 (six) months (or a longer time
approved by the Grants Officer for good cause shown) after delivery
of such data, permission to have notices placed on qualifying data
at the Grantee’s expense, and the Grants Officer may agree to do so
if the Grantee–
(i) Identifies the data to which the omitted notice is to be
applied;
(ii) Demonstrates that the omission of the notice was
inadvertent;
(iii) Establishes that the use of the proposed notice is
authorized; and
(iv) Acknowledges that the Government has no liability with
respect to the disclosure or use of any such data made prior to the
addition of the notice or resulting from the omission of the notice.
(2) The Grants Officer may also (i) permit correction, at the
Grantee’s expense, of incorrect notices if the Grantee identifies
the data on which correction of the notice is to be made and
demonstrates that the correct notice is authorized, or (ii) correct
any incorrect notices.
(f) Protection of Limited Rights Data and Restricted Computer
Software. When data other than that listed in paragraph (b)(1) are
specified to be delivered under this grant and such data qualify as
either limited-rights data or restricted computer software, the
Grantee, if the Grantee desires to continue protection of such data,
shall withhold such data and not furnish them to the Government
under this grant. As a condition to this withholding, the Grantee
shall identify the data being withheld and furnish form, fit, and
function data in lieu thereof.
(g) Subcontracting. The Grantee has the responsibility to obtain
from its subcontractors all data and rights therein necessary to
fulfill the Grantee’s obligations to the Government under this
grant. If a subcontractor refuses to accept terms affording the
Government such rights, the Grantee shall promptly bring such
refusal to the attention of the Grants Officer and not proceed with
subcontract award without further authorization.
(h) Relationship to Patents. Nothing contained in this clause
shall imply a license to the Government under any patent or be
construed as affecting the scope of any license or other right
otherwise granted to the Government.
(i) Transfer of Rights.
(1) Notwithstanding any other provisions of this clause, the
Grantee agrees that it will neither assign any rights nor grant any
exclusive rights in the United States to CSC data or copyrighted
data first produced in the performance of this Agreement unless the
assignee or licensee agrees that any products or processes depicted
by the CSC data or expressed by the copyrighted data will be
manufactured or practiced substantially in the United States.
However, in individual cases the requirement for such an agreement
may be waived by NASA upon a showing that reasonable but
unsuccessful efforts have been made to assign grants or rights on
similar terms to potential assignees or licensees that would be
likely to manufacture or practice substantially in the United States
or that under the circumstances domestic manufacture or practice is
not commercially feasible.
(2) The Grantee agrees that it will not grant to any person or
entity any exclusive right to use or sell in the United States any
product or process that embodies CSC data or is expressed by
copyrighted data first produced in the performance of this Agreement
unless the person or entity agrees that such products or processes
will be manufactured or practiced substantially in the United
States. However, in individual cases the requirement for such may be
waived by NASA upon a showing that reasonable but unsuccessful
efforts have been made to grant licenses on similar terms to
potential licensees that would be likely to manufacture or practice
substantially in the United States or that under the circumstances,
domestic manufacture or practice is not commercially feasible.

Sec. 1260.134 [Amended]

7. Amend Sec. 1260.134 in paragraph (a) by removing
“Sec. 1260.33(b)” and adding “Sec. 1260.133(b)” in its place.

Sec. 1260.152 [Amended]

8. Amend Sec. 1260.152 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b).
[FR Doc. 01-26623 Filed 10-25-01; 8:45 am]
BILLING CODE 7510-01-P

SpaceRef staff editor.