[Federal Register Volume 63, Number 186 (Friday, September 25, 1998)]
[Proposed Rules]
[Pages 51307-51310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25564]



[[Page 51307]]

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DEPARTMENT OF COMMERCE

National Institute of Standards and Technology

15 CFR Part 295

[Docket No. 980717184-8184-01]
RIN 0693-AB48


Advance Technology Program

AGENCY: National Institute of Standards and Technology, Technology 
Administration, Commerce.

ACTION: Notice of proposed rulemaking; Request for comments.

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SUMMARY: The National Institute of Standards and Technology requests 
comments on proposed revisions to the regulations which implement the 
Advanced Technology Program (ATP). Changes proposed today include 
modification of the ATP evaluation criteria and weights for project 
selection and clarify other sections of the rule. These changes 
strengthen the fundamental mission of the ATP: For Government to work 
in partnership with industry to foster the development and board 
dissemination of challenging, high-risk technologies that offer the 
potential for significant, broad-based economic benefits for the 
nation.

DATES: Comments on the proposed program must be received no later than 
October 26, 1998.

ADDRESSES: Comments on the proposed rulemaking must be submitted in 
writing to: Advanced Technology Program Rule Comments, National 
Institute of Standards and Technology, Room A333, Administration 
Building, Gaitherburg, MD 20899-0001.

FOR FURTHER INFORMATION CONTACT:
To receive additional program information, contact Barbara Lambis at 
301-975-4447.

SUPPLEMENTARY INFORMATION: The National Institute of Standards and 
Technology is today proposing changes to the operating procedures of 
the Advance Technology Program found at part 295 of Title 15 of the 
Code of Federal Regulations. These changes strengthen the fundamental 
mission of the ATP: For Government to work in partnership with industry 
to foster the development and broad dissemination of challenging, high-
risk technologies that offer the potential for significant, board-based 
economic benefits for the nation Such a unique government-industry 
research partnership fosters dramatic gains in existing industries, 
accelerates the development of emerging or enabling technologies 
leading to revolutionary new products, industrial processes and 
services for the world's markets, and helps spawn new industries of the 
21st century. The proposed changes protect the fundamental strengths of 
the ATP, especially the requirement that the ATP continue to be a 
wholly merit-driven program based on peer review. These changes are 
reflected in proposed amendments to the regulation contained in this 
Notice:
     Section 295.2, Definitions, is proposed to be modified to 
add a definition of ``company'' for clarity; to revise the definition 
of ``industry-led joint research and development venture'' for clarity; 
and to remove the definition of ``joint research and development 
venture'' or ``joint venture'' which is already included in the ATP 
status.
     Section 295.4, The selection process, is proposed to be 
modified to eliminate funding to assist proposers in overcoming any 
organizational deficiencies because the adequacy of the organizational 
structure is one of the ATP selection criteria.
     Section 295.6 Criteria for selection, is proposed to be 
modified to place equal emphasis on the technical and economic merits 
of a proposal in accordance with the purpose of the Program.
     Redesignated Sec. 295.11, NIST technical and educational 
services for ATP recipients, is proposed to be modified to add 
educational services to be provided to APT recipients.
     Section 295.21, qualifications of proposers, is proposed 
to be modified to state that for joint ventures, costs will only be 
allowed after the execution of the joint venture agreement and approval 
by NIST.
     Also, a number of administrative and clerical changes are 
proposed to be implemented to part 295 Sections 5, 7, 8, and 24 for 
consistency and clarity and removal of Sections 10 and 11 which are 
operational procedures unnecessary for inclusion in a regulation.

Request for Comments

    The National Institute of Standards and Technology requests 
comments on the draft revisions to regulations found at 15 CFR part 
295, implementing the Advanced Technology Program, which are included 
in this notice. Persons interest in commenting on the proposed program 
should submit their comments in writing to the above address. All 
comments received in response to this notice will become part of the 
public record and will be available for inspection and copying in the 
Commerce Department's Central Reference and Records Inspection 
Facility, Herbert Hoover Building, Room 6020, 14th Street between E 
Street and Constitution Avenue, NW, Washington, DC 20230.

Additional Information

Executive Order 12866

    This rule has been determined to be significant under section3(f) 
of Executive 12866.

Exectuvie Order 12612

    this rule does not contain policies with Federalism implications 
sufficient to warrant preparation of a Federalism assessment under 
Executive Order 12612.

Regualtory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy, 
Small Business Administration, that this rule, if promulgated, will not 
have a significant economic effect on a substantial number of small 
entities. (5 U.S.C. 605(b)). This is because there are only a small 
number of awardees and thus only a small number of awards will be given 
to small businesses. Specifically, based on past experience and 
currently foreseen budgets, the ATP would expect to receive only a few 
hundred proposals annually from small businesses, and from these, to 
make under 100 awards. Seeking ATP funding is entirely voluntary.

Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection-of-information, subject to the 
requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) control number.
    This proposed rule contains collection of information requirements

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subject to review and approval by the OMB under the Paperwork Reduction 
Act (PRA). The collection of information requirement applies to persons 
seeking financial assistance under the Advanced Technology Program as 
well as reporting requirements if financial assistance is granted. The 
collection of information requirements have been approved under OMB 
control Number 0693-0009 and 0651-0032. However, due to the proposed 
revisions to the criteria for selection of ATP proposals, the 
collection of information requirement contained in the proposed rule is 
being submitted to the Office of Management and Budget for review under 
section 3507 of the Paperwork Reduction Act. The public reporting 
burden per respondent for the collection of information contained in 
this rule is estimated to range between 20 and 30 hours per submission 
and 3 hours annually for recipients of financial assistance to provide 
monitoring reports. This estimate includes the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Comments are requested concerning: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) accuracy of NIST's burden estimate; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. 
Comments must be received no later than October 26, 1998 and addressed 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, D.C. 20503 (Attn: Desk Officer for 
NIST); and to Barbara Lambis, Room A333, Administration Building, 
National Institute of Standards and Technology, Gaithersburg, MD 20899.

National Environmental Policy Act

    This rule will not significantly affect the quality of the human 
environment. Therefore, an environmental assessment or Environmental 
Impact Statement is not required to be prepared under the National 
Environmental Policy Act of 1969.

Executive Order 12372

    Executive Order 12371 ``Intergovernmental Review of Federal 
Programs'' does not apply to this program.

List of Subjects in 15 CFR Part 295

    Inventions and Patents, Laboratories, Research and Development, 
Science and Technology.

    Dated: September 18, 1998.
Robert E. Hebner,
Acting Deputy Directory, National Institute of Standards and 
Technology.

    For reasons set forth in the preamble, it is proposed that title 
15, part 295 of the Code of Federal Regulations be amended as follows:

PART 295--ADVANCED TECHNOLOGY PROGRAM

    1. The authority citation for part 295 continues to read as 
follows:

    Authority: 15 U.S.C. 278n.

    2. Section 295.2 is amended by removing paragraph (j), 
redesignating paragraphs (b) through (i) as paragraphs (c) through (j), 
and adding new paragraph (b) to read as follows:
* * * * *
    (b) The term ``company'' means a for-profit organization, including 
sole proprietors, partnerships, or corporations.
* * * * *
    3. The newly redesignated paragraph (i) is revised as follows:
* * * * *
    (i) The term industry-led joint research and development venture or 
joint venture means a business arrangement that consists of two or more 
separately-owned, for-profit companies that perform research and 
development in the project; control the joint venture's membership, 
research directions, and funding priorities; and share total project 
costs with the Federal government. The joint venture may include 
additional companies, independent research organizations, universities, 
and/or governmental laboratories (other than NIST) which may or may not 
contribute funds (other than Federal funds) to the project and perform 
research and development. A for-profit company or an independent 
research organization may serve as an Administrator and perform 
administrative tasks on behalf of a joint venture, such as handling 
receipts and disbursements of funds and making antitrust filings. The 
following activities are not permissible for ATP funded joint ventures:
    (1) Exchanging information among competitors relating to costs, 
sales, profitability, prices, marketing, or distribution of any 
product, process, or service that is not reasonable required to conduct 
the research and development that is the purpose of such venture;
    (2) Entering into any agreement or engaging in any other conduct 
restricting, requiring, or otherwise involving the production or 
marketing by any person who is a party to such joint venture of any 
product, process, or service, other than the production or marketing of 
proprietary information developed through such venture, such as patents 
and trade secrets; and
    (3) Entering into any agreement or engaging in any other conduct:
    (i) To restrict or require the sale, licensing, or sharing of 
inventions or developments not developed through such venture, or
    (ii) To restrict or require participation by such party in other 
research and development activities, that is not reasonably required to 
prevent misappropriation of proprietary information contributed by any 
person who is a party to such venture or of the results of such 
venture.
* * * * *
    4. Section 295.4 is revised to read as follows:


Sec. 295.4  The selection process.

    (a) The selection process for awards is a multi-step process based 
on the criteria listed in Sec. 295.6. Source evaluation boards (SEB) 
are established to ensure that all proposals receive careful 
consideration. In the first step, called ``preliminary screening,'' 
proposals may be eliminated by the SEB that do not meet the 
requirements of this rule or the annual Federal Register Program 
announcement. Typical but not exclusive of the reasons for eliminating 
a proposal at this stage is that the proposal is deemed to have serious 
deficiencies in either the technical or business plan; involves product 
development rather than high risk R&D is not industry-led; is 
significantly overprices or underpriced given the scope of the work; 
does not meet the requirements set out in the notice of availability of 
funds issued pursuant to Sec. 295.7; or does not meet the cost sharing 
requirement. NIST will also examine proposals that have been submitted 
to a previous competition to determine whether substantive revisions 
have been made to the earlier proposal, and, if not, may reject the 
proposal.
    (b) In the second step, referred to as the ``technical and business 
review,'' proposals are evaluated under the criteria found in 
Sec. 295.6. Proposals judged by the SEB after considering the technical 
and business evaluations to have the highest merit based on the 
selection criteria receive further

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consideration and are referred to as ``semifinalists.''
    (c) In the third step, referred to as ``selection of finalists,'' 
the SEB prepares a final ranking of semifinalist proposals by a 
majority vote, based on the evaluation criteria in Sec. 295.6. During 
this step, the semifinalist proposers will be invited to an oral review 
of their proposals with NIST, and in some cases site visits may be 
required. Subject to the provisions of Sec. 295.6, a list of ranked 
finalists is submitted to the Selecting Official.
    (d) In the final step, referred to as ``selection of recipients,'' 
the Selecting Official selects funding recipients from among the 
finalists, based upon the SEB rank order of the proposals on the basis 
of all selection criteria (Sec. 295.6); assuring an appropriate 
distribution of funds among technologies and their applications; the 
availability of funds; and adherence to the Program selection criteria. 
The Program reserves the right to deny awards in any case where a 
search of Federal records discloses information that raises a 
reasonable doubt as to the responsibility of the proposer. The decision 
of the Selecting Official is final.
    (e) NIST reserves the right to negotiate the cost and scope of the 
proposed work with the proposers that have been selected to receive 
awards. For example, NIST may request that the proposer delete from the 
scope of work a particular task that is deemed by NIST to be product 
development or otherwise inappropriate for ATP support.
    5. Section 295.5 is revised to read as follows:


Sec. 295.5  Use of pre-proposals in the selection process.

    To reduce proposal preparation costs incurred by proposers and to 
make the selection process more efficient, NIST may use mandatory or 
optional preliminary qualification processes based on pre-proposals. In 
such cases, announcements requesting pre-proposals will be published as 
indicated in Sec. 295.7, and will seek abbreviated proposals (pre-
proposals) that address both of the selection criteria, but in 
considerably less detail than full proposals. The Program will review 
the pre-proposals in accordance with the selection criteria and provide 
written feedback to the proposers. When the full proposals are 
received, the review and selection process will continue as described 
in Sec. 295.4.
    6. Section 295.6 is revised to read as follows:


Sec. 295.6  Criteria for selection.

    The evaluation criteria to be used in selecting any proposals for 
funding under this program, and their respective weights, are listed 
below. No proposal will be funded unless the Program determines that it 
has scientific and technological merit and that the proposed technology 
has strong potential for broad-based economic benefits to the nation. 
Additionally, no proposal will be funded that does not require Federal 
support, is product development rather than high risk R&D, does not 
display an appropriate level of commitment on the part of the proposer, 
or does not have an adequate technical and commercialization plan.
    (a) Scientific and Technological Merit (50%). The proposed 
technology must be highly innovative. The research must be challenging, 
with high technical risk. It must be aimed at overcoming an important 
problem(s) or exploiting a promising opportunity. The enabling nature 
of the technology must be explained. The research must have a strong 
potential for advancing the state of the art and contributing 
significantly to the U.S. scientific and technical knowledge base. The 
technical plan must be clear and concise, and must clearly identify the 
core innovation, the technical approach, major technical hurdles, the 
attendant risks, and clearly establish feasibility through adequately 
detailed plans linked to major technical barriers. The plan must 
address the questions of ``what, how, where, when, why, and by whom'' 
in substantial detail, and be credibly linked to the pathway for 
achieving potential broad-based economic benefits. The Program will 
assess the proposing team's relevant experience for pursuing the 
technical plan. The team carrying out the work must demonstrate a high 
level of scientific/technical expertise to conduct the R&D and have 
access to the necessary research facilities.
    (b) Potential broad-based economic benefits (50%). The proposed 
technology must have a strong potential to generate substantial 
benefits to the nation that extend significantly beyond the direct 
returns to the proposing organization(s). It must be explained why ATP 
support is needed and what difference ATP funding is expected to make 
in terms of what will be accomplished with the ATP funding versus 
without it. The pathways to economic benefit must be described, 
including the proposer's plan for getting the technology into 
commercial use, as well as additional routes that might be taken to 
achieve broader diffusion of the technology. The proposal should 
identify the expected returns that the proposer expects to gain, as 
well as returns that are expected to accrue to others, i.e., spillover 
effects. The Program will assess the proposer's relevant experience and 
level of commitment to the project and project's organizational 
structure and management plan, including the extent to which 
participation by small businesses is encouraged and is a key component 
in a joint venture proposal, and for large company single proposers, 
the extent to which subcontractor/subrecipient teaming arrangements are 
featured and are a key component of the proposal.
    7. Section 295.7 is revised to read as follows:


Sec. 295.7  Notice of availability of funds.

    The Program shall publish at least annually a Federal Register 
notice inviting interested parties to submit proposals, and may more 
frequently published invitations for proposals in the Commerce Business 
Daily, based upon the annual notice. Proposals must be submitted in 
accordance with the guidelines in the ATP Proposal Kit as identified in 
the published notice. Proposals will only be considered for funding 
when submitted in response to an invitation published in the Federal 
Register, or a related announcement in the Commerce Business Daily.
    8. Section 295.8(a) is revised to read as follows;


Sec. 295.8  Intellectual property rights; Publication of research 
results.

    (a)(1) Patent Rights: Title to inventions arising from assistance 
provided by the Program must vest in a company or companies 
incorporated in the United States. Joint ventures shall provide to NIST 
a copy of their written agreement which defines the disposition of 
ownership rights among the members of the joint venture, and their 
contractors and subcontractors as appropriate, that complies with the 
first sentence of this paragraph. The United States will reserve a non-
exclusive, nontransferable, irrevocable, paid-up license to practice or 
have practiced for or on behalf of the United States any such 
intellectual property, but shall not, in the exercise of such license, 
publicly disclose proprietary information related to the license. Title 
to any such intellectual property shall not be transferred or passed, 
except to a company incorporated in the United States, until the 
expiration of the first patent obtained in connection with such 
intellectual property. Nothing in this paragraph shall be construed to 
prohibit the licensing to any company of

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intellectual property rights arising from assistance provided under 
this section.
    (2) Patent Procedures: Each award by the Program shall include 
provisions assuring the retention of a governmental use license in each 
disclosed invention, and the government's retention of march-in rights. 
In addition, each award by the Program will contain procedures 
regarding reporting of subject inventions by finding Recipient to the 
Program, including the subject inventions of members of the joint 
venture (if applicable) in which the funding Recipient is a 
participant, contractors and subcontractors of the funding Recipient. 
The funding Recipient shall disclose such subject inventions to the 
Program within two months after the inventor discloses it in writing to 
the Recipient's designated representative responsible for patent 
matters. This disclosure shall consist of a detailed, written report 
which provides the Program with the following: the title of the present 
invention; the names of all inventors; the name and address of the 
assignee (if any); an acknowledgment that the United States has rights 
in the subject invention; the filing date of the present invention, or, 
in the alternative, a statement identifying that the Recipient 
determined that filing was not feasible; an abstract of the disclosure; 
a description or summary of the present invention; the background of 
the present invention or the prior art; a description of the preferred 
embodiments; and what matter is claimed. Upon issuance of the patent, 
the funding Recipient or Recipients must notify the Program 
accordingly, providing it with the Serial Number of the patent as 
issued, the date of issuance, a copy of the disclosure as issued, and 
if appropriate, the name, address, and telephone number(s) of an 
assignee.
* * * * *


Secs. 295.10 and 295.11  [Removed]


Secs. 295.12 and 295.13  [Redesignated as Secs. 295.10 and 295.11]

    9. Sections 295.10 and 295.11 are removed and Secs. 295.12 and 
295.13 are redesignated as Secs. 295.10 and 295.11.
    10. The newly redesignated Sec. 295.11 is amended by revising the 
heading and by adding a new paragraph (c) to read as follows:


Sec. 295.11  Technical and Educational Services for ATP Recipients.

* * * * *
    (c) From time to time, ATP may conduct public workshops and 
undertake other educational activities to foster the collaboration of 
funding recipients with other funding resources for purposes of further 
development and commercialization of ATP-related technologies. In no 
event will ATP provide recommendations, endorsements, or approvals of 
any ATP funding recipients to any outside party.
    11. Section 295.21 revised to read as follows:


Sec. 295.21  Qualfications of proposers.

    Subject to the limitations set out in Sec. 295.3, assistance under 
this Subpart is available only to industry-led joint research and 
development ventures. These joint ventures may include universities, 
independent research organizations, and governmental entities. 
Proposals for funding under this Subpart may be submitted on behalf of 
a joint venture by a for-profit company or an independent research 
organization that is a member of the joint venture. Proposals should 
include letters of commitment or excerpts of such letters from all 
proposed members of the joint venture, verifying the availability of 
cost-sharing funds, and authorizing the part submitting the proposal to 
act on behalf of the venture with the Program on all matters pertaining 
to the proposal. No costs shall be incurred under an ATP project by the 
joint venture members until such time as a joint venture agreement has 
been executed by all of the joint venture members and approved by NIST. 
NIST will withhold approval until it determines that a sufficient 
number of members have signed the joint venture agreement. Costs will 
only be allowed after the execution of the joint venture agreement and 
approval by NIST.
    12. Section 295.24 is revised to read as follows:


Sec. 295.24  Registration.

    Joint ventures selected for funding under the Program must notify 
the Department of Justice and the Federal Trade Commission under the 
National Cooperative Research Act of 1984. No funds will be released 
prior to receipt by the Program of copies of such notification.

[FR Doc. 98-25564 Filed 9-24-98; 8:45 am]
BILLING CODE 3510-13-M