[Federal Register Volume 66, Number 208 (Friday, October 26, 2001)]
[Rules and Regulations]
[Pages 54120-54125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26623]


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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.

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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