[Federal Register Volume 73, Number 46 (Friday, March 7, 2008)]
[Proposed Rules]
[Pages 12305-12312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4562]
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DEPARTMENT OF COMMERCE
National Institute of Standards and Technology
15 CFR Part 296
[Docket No: 071106659-7661-01]
RIN 0693-AB59
Technology Innovation Program
AGENCY: National Institute of Standards and Technology, United States
Department of Commerce.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Director of the National Institute of Standards and
Technology (NIST), United States Department of Commerce, requests
comments on proposed regulations which implement the Technology
Innovation Program (TIP). The proposed rule prescribes policies and
procedures for the award of financial assistance (grants and/or
cooperative agreements) under TIP. In addition, NIST is revising the
heading of Subchapter K of its regulations to accurately reflect the
current contents of that subchapter.
DATES: Comments must be received no later than April 21, 2008.
ADDRESSES: Comments on the proposed regulations must be submitted in
writing to: National Institute of Standards and Technology, Technology
Innovation Program NPRM, 100 Bureau Drive, Mail Stop 4700,
Gaithersburg, MD 20899-4700, or via the Federal e-Rulemaking Portal:
www.regulations.gov. Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Barbara Lambis via e-mail at
[email protected] or telephone (301) 975-4447.
SUPPLEMENTARY INFORMATION: The America Creating Opportunities to
[[Page 12306]]
Meaningfully Promote Excellence in Technology, Education, and Sciences
(COMPETES) Act, Public Law 110-69, was enacted on August 9, 2007, to
invest in innovation through research and development and to improve
the competitiveness of the United States. Section 3012 of the COMPETES
Act established TIP for the purpose of assisting United States
businesses and institutions of higher education or other organizations,
such as national laboratories and nonprofit research institutions, to
support, promote, and accelerate innovation in the United States
through high-risk, high-reward research in areas of critical national
need. High-risk, high-reward research is research that has the
potential for yielding transformational results with far-ranging or
wide-ranging implications; addresses areas of critical national need
that support, promote, and accelerate innovation in the United States
and is within NIST's areas of technical competence; and is too novel or
spans too diverse a range of disciplines to fare well in the
traditional peer review process. Section 3012(f) of the America
COMPETES Act requires the NIST Director to promulgate regulations
implementing the TIP.
This notice solicits comments on proposed regulations for the TIP.
When the comment period is concluded, NIST will analyze the comments
received, incorporate comments as appropriate, and publish the final
regulation.
Examples of NIST's technical competencies are summarized on the
NIST Web site at http://www.nist.gov/public_affairs/labs2.htm.
However, this summary is not exhaustive and may not include all
competencies required for NIST to respond to the diverse industry needs
for measurement methods, tools, data, technology and standard reference
materials. NIST competencies evolve as the recognition for the needs of
measurement science in that area evolves. NIST competencies are more
expansive than just the physical and engineering sciences. NIST
translates its physical and engineering science competencies to meet
the needs of emerging areas where scientific boundaries are advancing.
For each TIP competition, the Program will solicit proposals
through an announcement in the Federal Register. The notices will
include a description of the areas of critical national need that will
be addressed in that competition. Critical national need areas are
those for which government attention is demanded because the magnitude
of the problem is large and the societal challenges that need to be
overcome are not being addressed. In determining which areas of
critical national need will be addressed in a competition, TIP may
solicit input from within NIST, from the TIP Advisory Board, and from
the public. Information about the TIP Advisory Board may be found on
the TIP Web site at http://www.nist.gov/tip. TIP may engage experts in
scientific and technology policy to ensure that the areas of critical
national need that will be considered are those that entail significant
societal challenges that are not already being addressed by others and
could be addressed through high-risk, high-reward research. Specific
societal challenges within selected areas of critical national need
will be the focus of TIP funding.
In addition to information provided in the Federal Register
announcement, TIP will post a Federal Funding Opportunity at the
Grants.gov Web site at www.Grants.gov. TIP may also communicate
information about the Program and the competition through means such as
the publication of the Proposal Preparation Kit, public meetings, and
posting information on the Program's Web site at http://www.nist.gov/tip. NIST notes the proposed rule, in section 296.22, requires that
proposals must demonstrate that reasonable and thorough efforts have
been made to secure funding from alternative funding sources and no
other alternative funding sources are reasonably available. NIST seeks
comment on how it should determine if such efforts have been made, what
criteria NIST should examine in determining the reasonableness and
thoroughness of such efforts, and what demonstrations applicants must
make to satisfy such criteria.
In addition, NIST is revising the heading of Subchapter K of its
regulations to accurately reflect the current contents of that
subchapter. The current heading of Subchapter K is ``Advanced
Technology Program,'' but the subchapter contains regulations
pertaining to that Program, the Hollings Manufacturing Extension
Partnership Program, and now the TIP. The new heading of Subchapter K
will be ``NIST Extramural Programs.''
Request for Public Comment: Persons interested in commenting on the
proposed regulations 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 at the Department of Commerce Central Reference and Records
Inspection Facility, Room 6228, Herbert C. Hoover Building, Washington,
DC 20230.
Additional Information
Executive Order 12866
This rulemaking is a significant regulatory action under Sections
3(f)(3) and 3(f)(4) of Executive Order 12866, as it materially alters
the budgetary impact of a grant program and raises novel policy issues.
This rulemaking, however, is not an ``economically significant''
regulatory action under Section 3(f)(1) of the Executive Order, as it
does not have an effect on the economy of $100 million or more in any
one year, and it does not have a material adverse effect on the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities.
Executive Order 13132
This rule does not contain policies with Federalism implications as
defined in Executive Order 13132.
Regulatory Flexibility Act
Because notice and comment are not required under 5 U.S.C. 553, or
any other law, the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. As such, a
regulatory flexibility analysis is not required, and none has been
prepared.
Paperwork Reduction Act
Notwithstanding any other provision of the law, no person is
required to, nor shall any person be subject to penalty for failure to
comply with, a collection of information, subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
Control Number.
This proposed rule does not contain collection of information
requirements subject to review and approval by OMB under the Paperwork
Reduction Act (PRA). The TIP Proposal Preparation Kit, which contains
all necessary forms and information requirements, will be submitted to
OMB for approval. The OMB Control Number for the information collection
requirements will be published in all Federal Register notices
soliciting proposals under the Program.
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
[[Page 12307]]
National Environmental Policy Act of 1969.
List of Subjects in 15 CFR Part 296
Business and industry; grant programs--science and technology;
Inventions and patents; Reporting and recordkeeping requirements;
Research; Science and technology.
Dated: March 3, 2008.
Richard F. Kayser,
Acting Deputy Director.
For reasons set forth in the preamble, under the authority of 15
U.S.C. 278n (Pub. L. 110-69 section 3012), it is proposed that title 15
of the Code of Federal Regulations be amended as follows:
1. The heading of chapter II, subchapter K is revised to read as
follows:
Subchapter K--NIST Extramural Programs
2. In 15 CFR chapter II, subchapter K, add a new part 296 as
follows:
PART 296--TECHNOLOGY INNOVATION PROGRAM
Subpart A--General
Sec.
296.1 Purpose.
296.2 Definitions.
296.3 Types of assistance available.
296.4 Limitations on assistance.
296.5 Eligibility requirements for companies and joint ventures.
296.6 Valuation of transfers.
296.7 Joint venture registration.
296.8 Joint venture agreement.
296.9 Activities not permitted for joint ventures.
296.10 Third party in-kind contribution of research services.
296.11 Intellectual property rights.
296.12 Reporting and auditing requirements.
Subpart B--The Competition Process
296.20 The Selection process.
296.21 Evaluation criteria.
296.22 Award criteria.
Subpart C--Monitoring, Evaluation and Dissemination of Program Results
296.30 Monitoring and evaluation.
296.31 Dissemination of results.
296.32 Technical and educational services.
296.33 Annual report.
Authority: 15 U.S.C. 278n (Pub. L.110-69 section 3012).
Subpart A--General
296.1 Purpose.
(a) The purpose of the Technology Innovation Program (TIP) is to
assist United States businesses and institutions of higher education or
other organizations, such as national laboratories and nonprofit
research institutes, to support, promote, and accelerate innovation in
the United States through high-risk, high-reward research in areas of
critical national need within NIST's areas of technical competence.
(b) The rules in this part prescribe policies and procedures for
the award and administration of financial assistance (grants and/or
cooperative agreements) under the TIP. While the TIP is authorized to
enter into grants, cooperative agreements, and contracts to carry out
the TIP mission, the rules in this part address only the award of
grants and/or cooperative agreements.
296.2 Definitions.
(a) The term award means Federal financial assistance made under a
grant or cooperative agreement.
(b) The term business or company means a for-profit organization,
including sole proprietors, partnerships, limited liability companies
(LLCs), and corporations.
(c) The term contract means a procurement contract under an award
or subaward, and a procurement subcontract under a recipient's or
subrecipient's contract.
(d) The term contractor means the legal entity to which a contract
is made and which is accountable to the recipient, subrecipient, or
contractor making the contract for the use of the funds provided.
(e) The term cooperative agreement refers to a Federal assistance
instrument used whenever the principal purpose of the relationship
between the Federal government and the recipient is to transfer
something of value, such as money, property, or services to the
recipient to accomplish a public purpose of support or stimulation
authorized by Federal statute instead of acquiring (by purchase, lease,
or barter) property or services for the direct benefit or use of the
Federal government; and substantial involvement is anticipated between
the Federal government and the recipient during performance of the
contemplated activity.
(f) The term critical national need means an area that demands
government attention because the magnitude of the problem is large and
the societal challenges that need to be overcome are not being
addressed, but could be addressed through high-risk, high-reward
research.
(g) The term direct costs means costs that can be identified
readily with activities carried out in support of a particular final
objective. A cost may not be allocated to an award as a direct cost if
any other cost incurred for the same purpose in like circumstances has
been assigned to an award as an indirect cost. Because of the diverse
characteristics and accounting practices of different organizations, it
is not possible to specify the types of costs which may be classified
as direct costs in all situations. However, typical direct costs could
include salaries of personnel working on the TIP project, travel,
equipment, materials and supplies, subcontracts, and other costs not
categorized in the preceding examples. NIST shall determine the
allowability of direct costs in accordance with applicable Federal cost
principles.
(h) The term Director means the Director of the National Institute
of Standards and Technology (NIST).
(i) The term eligible company means a small-sized or medium-sized
business or company that satisfies the ownership and other requirements
stated in this part.
(j) The term grant means a Federal assistance instrument used
whenever the principal purpose of the relationship between the Federal
government and the recipient is to transfer something of value, such as
money, property, or services to the recipient to accomplish a public
purpose of support or stimulation authorized by Federal statute instead
of acquiring (by purchase, lease, or barter) property or services for
the direct benefit or use of the Federal government; and no substantial
involvement is anticipated between the Federal government and the
recipient during performance of the contemplated activity.
(k) The term high-risk, high-reward research means research that:
(1) has the potential for yielding transformational results with
far-ranging or wide-ranging implications;
(2) addresses areas of critical national need that support,
promote, and accelerate innovation in the United States and is within
NIST's areas of technical competence; and
(3) is too novel or spans too diverse a range of disciplines to
fare well in the traditional peer-review process.
(l) The term indirect costs means those costs incurred for common
or joint objectives that cannot be readily identified with activities
carried out in support of a particular final objective. A cost may not
be allocated to an award as an indirect cost if any other cost incurred
for the same purpose in like circumstances has been assigned to an
award as a direct cost. Because of diverse characteristics and
accounting practices it is not possible to specify the types of costs
which may be classified as indirect costs in all situations.
[[Page 12308]]
However, typical examples of indirect costs include general
administration expenses, such as the salaries and expenses of executive
officers, personnel administration, maintenance, library expenses, and
accounting. NIST shall determine the allowability of indirect costs in
accordance with applicable Federal cost principles.
(m) The term institution of higher education means an educational
institution in any State that--
(1) admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of
education beyond secondary education;
(3) provides an educational program for which the institution
awards a bachelor's degree or provides not less than a 2-year program
that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or
association, or if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary of Education for the granting of
preaccreditation status, and the Secretary of Education has determined
that there is satisfactory assurance that the institution will meet the
accreditation standards of such an agency or association within a
reasonable time (20 U.S.C. 1001). For the purpose of this paragraph (l)
only, the term State includes, in addition to the several States of the
United States, the Commonwealth of Puerto Rico, the District of
Columbia, Guam, American Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Mariana Islands, and the Freely Associated
States. The term Freely Associated States means the Republic of the
Marshall Islands, the Federated States of Micronesia, and the Republic
of Palau.
(n) The term intellectual property means an invention patentable
under title 35, United States Code, or any patent on such an invention,
or any work for which copyright protection is available under title 17,
United States Code.
(o) The term joint venture means a business arrangement that:
(1) includes either:
(i) at least two separately owned companies that are both
substantially involved in the project and both of which are
contributing to the cost-sharing required under the TIP statute, with
the lead company of the joint venture being an eligible company; or
(ii) at least one eligible company and one institution of higher
education or other organization, such as a national laboratory,
governmental laboratory (not including NIST), or nonprofit research
institute, that are both substantially involved in the project and both
of which are contributing to the cost-sharing required under the TIP
statute, with the lead entity of the joint venture being either the
eligible company or the institution of higher education; and
(2) may include additional for-profit companies, institutions of
higher education, and other organizations, such as national
laboratories and nonprofit research institutes, that may or may not
contribute non-Federal funds to the project.
(p) The term large-sized business means any business, including any
parent company plus related subsidiaries, having annual revenues in
excess of the amount published by the Program in the relevant Federal
Register notice of availability of funds in accordance with Sec.
296.20. In establishing this amount, the Program may consider the
dollar value of the total revenues of the 1000th company in Fortune
magazine's Fortune 1000 listing.
(q) The term matching funds or cost sharing means that portion of
project costs not borne by the Federal government. Sources of revenue
to satisfy the required cost share include cash and third party in-kind
contributions. Cash may be contributed by any non-Federal source,
including but not limited to recipients, state and local governments,
companies, and nonprofits (except contractors working on a TIP
project). Third party in-kind contributions include but are not limited
to equipment, research tools, software, supplies, and/or services. The
value of in-kind contributions shall be determined in accordance with
Sec. 14.23 of this title and will be prorated according to the share
of total use dedicated to the TIP project. NIST shall determine the
allowability of matching share costs in accordance with applicable
Federal cost principles.
(r) The term medium-sized business means any business that does not
qualify as a small-sized business or a large-sized business under the
definitions in this section.
(s) The term member means any entity that is identified as a joint
venture member in the award and is a signatory on the joint venture
agreement required by Sec. 296.8.
(t) The term nonprofit research institute means a nonprofit
research and development entity or association organized under the laws
of any state for the purpose of carrying out research and development.
(u) The term participant means any entity that is identified as a
recipient, subrecipient, or contractor on an award to a joint venture
under the Program.
(v) The term person will be deemed to include corporations and
associations existing under or authorized by the laws of the United
States, the laws of any of the Territories, the laws of any State, or
the laws of any foreign country.
(w) The term Program or TIP means the Technology Innovation
Program.
(x) The term recipient means an organization receiving an award
directly from NIST under the Program.
(y) The term small-sized business means a business that is
independently owned and operated, is organized for profit, has fewer
than 500 employees, and meets the other requirements found in 13 CFR
part 121.
(z) The term societal challenge means a problem or issue confronted
by society that when not addressed could negatively affect the overall
function and quality of life of the nation, and as such demands
government attention.
(aa) Except for the use of the term State for the limited purpose
described in paragraph (l) of this section, the term State means any of
the several States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, and any territory or possession of the
United States, or any agency or instrumentality of a State exclusive of
local governments. The term does not include any public and Indian
housing agency under the United States Housing Act of 1937.
(bb) The term subaward means an award of financial assistance made
under an award by a recipient to an eligible subrecipient or by a
subrecipient to a lower tier subrecipient. The term includes financial
assistance when provided by any legal agreement, even if the legal
agreement is called a contract, but does not include procurement of
goods and services.
(cc) The term subrecipient means the legal entity to which a
subaward is made and which is accountable to the recipient for the use
of the funds provided.
(dd) The term transformational results means potential project
outcomes that enable disruptive changes over and above current methods
and strategies. Transformational results have the potential to
radically improve our understanding of systems and technologies,
challenging the status quo
[[Page 12309]]
of research approaches and applications.
(ee) The term United States owned company means a for-profit
organization, including sole proprietors, partnerships, limited
liability companies (LLCs), and corporations, that has a majority
ownership by individuals who are citizens of the United States.
Sec. 296.3 Types of assistance available.
Subject to the limitations of this section and Sec. 296.4,
assistance under this part is available to eligible companies or joint
ventures that request either of the following:
(a) Single Company Awards: No award given to a single company shall
exceed a total of $3,000,000 over a total of 3 years.
(b) Joint Venture Awards: No award given to a joint venture shall
exceed a total of $9,000,000 over a total of 5 years.
Sec. 296.4 Limitations on assistance.
(a) The Federal share of a project funded under the Program shall
not be more than 50 percent of total project costs.
(b) Federal funds awarded under this Program may be used only for
direct costs and not for indirect costs, profits, or management fees.
(c) No large-sized business may receive funding as a recipient or
subrecipient of an award under the Program. When procured in accordance
with procedures established under the Procurement Standards required by
part 14 of chapter I of this title, recipients may procure supplies and
other expendable property, equipment, real property and other services
from any party, including large-sized businesses.
(d) If a project ends before the completion of the period for which
an award has been made, after all allowable costs have been paid and
appropriate audits conducted, the unspent balance of the Federal funds
shall be returned by the recipient to the Program.
Sec. 296.5 Eligibility requirements for companies and joint ventures.
Companies and joint ventures must be eligible in order to receive
funding under the Program and must remain eligible throughout the life
of their awards.
(a) A company shall be eligible to receive an award from the
Program only if:
(1) The company is a small-sized or medium-sized business that is
incorporated in the United States and does a majority of its business
in the United States; and
(2) Either
(i) The company is a United States owned company; or
(ii) The company is owned by a parent company incorporated in
another country and the Program finds that:
(A) the company's participation in TIP would be in the economic
interest of the United States, as evidenced by investments in the
United States in research, development, and manufacturing (including,
for example, the manufacture of major components or subassemblies in
the United States); significant contributions to employment in the
United States; and agreement with respect to any technology arising
from assistance provided by the Program to promote the manufacture
within the United States of products resulting from that technology,
and to procure parts and materials from competitive United States
suppliers; and
(B) that the parent company is incorporated in a country which
affords to United States-owned companies opportunities, comparable to
those afforded to any other company, to participate in any joint
venture similar to those authorized to receive funding under the
Program; affords to United States-owned companies local investment
opportunities comparable to those afforded to any other company; and
affords adequate and effective protection for the intellectual property
rights of United States-owned companies.
(b) NIST may suspend a company or joint venture from continued
assistance if it determines that the company, the country of
incorporation of the company or a parent company, or any member of the
joint venture has failed to satisfy any of the criteria contained in
paragraph (a) of this section, and that it is in the national interest
of the United States to do so.
(c) Members of joint ventures that are companies must be
incorporated in the United States and do a majority of their business
in the United States and must comply with the requirements of paragraph
(a)(2) of this section. For a joint venture to be eligible for
assistance, it must be comprised as defined in Sec. 296.2(o).
Sec. 296.6 Valuation of transfers.
(a) This section applies to transfers of goods, including computer
software, and services provided by the transferor related to the
maintenance of those goods, when those goods or services are
transferred from one joint venture member to another separately-owned
joint venture member.
(b) The greater amount of the actual cost of the transferred goods
and services as determined in accordance with applicable Federal cost
principles, or 75 percent of the best customer price of the transferred
goods and services, shall be deemed to be allowable costs. Best
customer price means the GSA schedule price, or if such price is
unavailable, the lowest price at which a sale was made during the last
twelve months prior to the transfer of the particular good or service.
Sec. 296.7 Joint venture registration.
Joint ventures selected for assistance under the Program must
notify the Department of Justice and the Federal Trade Commission under
section 6 of the National Cooperative Research Act of 1984, as amended
(15 U.S.C. 4305). No funds will be released prior to receipt by the
Program of copies of such notification.
Sec. 296.8 Joint venture agreement.
NIST shall not issue a TIP award to a joint venture and no costs
shall be incurred under a TIP 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.
Sec. 296.9 Activities not permitted for joint ventures.
The following activities are not permissible for TIP-funded joint
ventures:
(a) exchanging information among competitors relating to costs,
sales, profitability, prices, marketing, or distribution of any
product, process, or service that is not reasonably required to conduct
the research and development that is the purpose of such venture;
(b) entering into any agreement or engaging in any other conduct
restricting, requiring, or otherwise involving the marketing,
distribution, or provision by any person who is a party to such joint
venture of any product, process, or service, other than the
distribution among the parties to such venture, in accordance with such
venture, of a product, process, or service produced by such venture,
the marketing of proprietary information, such as patents and trade
secrets, developed through such venture, or the licensing, conveying,
or transferring of intellectual property, such as patents and trade
secrets, developed through such venture; and
(c) entering into any agreement or engaging in any other conduct:
(1) to restrict or require the sale, licensing, or sharing of
inventions or developments not developed through such venture; or
[[Page 12310]]
(2) 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.
Sec. 296.10 Third party in-kind contribution of research services.
NIST shall not issue a TIP award to a single recipient or joint
venture whose proposed budget includes the use of third party in-kind
contribution of research as cost share, and no costs shall be incurred
under such a TIP project, until such time as an agreement between the
recipient and the third party contributor of in-kind research has been
executed by both parties and approved by NIST.
Sec. 296.11 Intellectual property rights and procedures.
(a) Rights in Data. Except as otherwise specifically provided for
in an award, authors may copyright any work that is subject to
copyright and was developed under an award. When claim is made to
copyright, the applicable copyright notice of 17 U.S.C. 401 or 402 and
acknowledgment of Federal government sponsorship shall be affixed to
the work when and if the work is delivered to the Federal government,
is published, or is deposited for registration as a published work in
the U.S. Copyright Office. The copyright owner shall grant to the
Federal government, and others acting on its behalf, a paid up,
nonexclusive, irrevocable, worldwide license for all such works to
reproduce, publish, or otherwise use the work for Federal purposes.
(b) Invention Rights. (1) Ownership of inventions developed from
assistance provided by the Program under Sec. 296.3(a) shall be
governed by the requirements of chapter 18 of title 35 of the United
States Code.
(2) Ownership of inventions developed from assistance provided by
the Program under Sec. 296.3(b) may vest in any participant in the
joint venture, as agreed by the members of the joint venture,
notwithstanding Sec. 202 (a) and (b) of Title 35, United States Code.
Title to any such invention shall not be transferred or passed, except
to a participant in the joint venture, until the expiration of the
first patent obtained in connection with such invention. In accordance
with Sec. 296.8, joint ventures will provide to NIST a copy of their
written agreement that defines the disposition of ownership rights
among the participants of the joint venture, including the principles
governing the disposition of intellectual property developed by
contractors and subcontractors, as appropriate, and that complies with
these regulations.
(3) The United States reserves a nonexclusive, nontransferable,
irrevocable paid-up license, to practice or have practiced for or on
behalf of the United States any inventions developed using assistance
under this section, but shall not in the exercise of such license
publicly disclose proprietary information related to the license.
Nothing in this subsection shall be construed to prohibit the licensing
to any company of intellectual property rights arising from assistance
provided under this section.
(4) Should the participants in a joint venture cease to exist prior
to the expiration of the first patent obtained in connection with any
invention developed from assistance provided under the Program, in the
course of the bankruptcy or other dissolution process for the last
participant of the joint venture, title to such patent may be
transferred or passed to a United States entity that can commercialize
the technology in a timely fashion.
(c) Patent Procedures. Each award by the Program will 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 the recipient through the
Interagency Edison extramural invention reporting system (iEdison),
including the subject inventions of recipients, including members of
the joint venture (if applicable), subrecipients, and contractors of
the recipient or joint venture members.
Sec. 296.12 Reporting and auditing requirements.
Each award by the Program shall contain procedures regarding
technical, business, and financial reporting and auditing requirements
to ensure that awards are being used in accordance with the Program's
objectives and applicable Federal cost principles. The purpose of the
technical reporting is to monitor ``best effort'' progress toward
overall project goals. The purpose of the business reporting is to
monitor project performance against the Program's mission as required
by the Government Performance and Results Act (GPRA) mandate for
program evaluation. The purpose of the financial reporting is to
monitor the status of project funds. The audit standards to be applied
to TIP awards are the ``Government Auditing Standards'' (GAS) issued by
the Comptroller General of the United States and any Program-specific
audit guidelines or requirements prescribed in the award terms and
conditions. To implement paragraph (f) of Sec. 14.25, Revision of
budget and program plans, of this title, audit standards and award
terms may stipulate that ``total Federal and non-Federal funds
authorized by the Grants Officer'' means the total Federal and non-
Federal funds authorized by the Grants Officer annually.
Subpart B--The Competition Process
Sec. 296.20 The selection process.
(a) To begin a competition, the Program will solicit proposals
through an announcement in the Federal Register, which will contain
information regarding that competition, including the areas of critical
national need that proposals must address. An Evaluation Panel(s) will
be established to evaluate proposals and ensure that all proposals
receive careful consideration.
(b) A preliminary review will be conducted to determine whether the
proposal:
(1) Is in accordance with Sec. 296.3, Types of Assistance
Available;
(2) Complies with either paragraph (a) or paragraph (c) of Sec.
296.5, Eligibility Requirements for Companies and Joint Ventures;
(3) Addresses the award criteria of paragraphs (a) through (c) of
Sec. 296.22, Award Criteria;
(4) Was submitted to a previous TIP competition and if so, has been
substantially revised; and
(5) Is complete.
Complete proposals that meet the preliminary review requirements
described above will be considered further. Proposals that are
incomplete or do not meet any one of these preliminary review
requirements will normally be eliminated.
(c) The Evaluation Panel(s) will then conduct a multi-disciplinary
peer review of the remaining proposals based on the evaluation criteria
listed in Sec. 296.21 and the award criteria listed in Sec. 296.22.
In some cases NIST may conduct oral reviews and/or site visits. The
Evaluation Panel(s) will present funding recommendations to the
Selecting Official in rank order for further consideration. The
Evaluation Panel(s) will not recommend for further consideration any
proposal determined not to meet all of the eligibility and award
requirements of this part and the Federal Register notice announcing
the availability of funds.
(d) In making final selections, the Selecting Official will select
funding
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recipients based upon the Evaluation Panel's rank order of the
proposals and the following selection factors: assuring an appropriate
distribution of funds among technologies and their applications,
availability of funds, and/or Program priorities. The selection of
proposals by 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. This may include requesting that the proposer delete from the
scope of work a particular task that is deemed by NIST to be
inappropriate for support against the evaluation criteria. NIST also
reserves the right to reject a proposal where information is uncovered
that raises a reasonable doubt as to the responsibility of the
proposer. The final approval of selected proposals and award of
assistance will be made by the NIST Grants Officer as described in the
Federal Register notice announcing the competition. The award decision
of the NIST Grants Officer is final.
Sec. 296.21 Evaluation criteria.
A proposal must be determined to be competitive against the
Evaluation Criteria set forth in this section to receive funding under
the Program. Additionally, no proposal will be funded unless the
Program determines that it has scientific and technical merit and that
the proposed research has strong potential for meeting identified areas
of critical national need.
(a) The proposer(s) adequately addresses the scientific and
technical merit and how the research may result in intellectual
property vesting in a United States entity including evidence that:
(1) The proposed research is novel;
(2) The proposed research is high-risk, high-reward;
(3) The proposer(s) demonstrates a high level of relevant
scientific/technical expertise for key personnel, including contractors
and/or informal collaborators, and have access to the necessary
resources, for example research facilities, equipment, materials, and
data, to conduct the research as proposed;
(4) The research result(s) has the potential to address the
technical needs associated with a major societal challenge not
currently being addressed; and
(5) The proposed research plan is scientifically sound with tasks,
milestones, timeline, decision points and alternate strategies.
Total weight of (a)(1) through (5) is 50%.
(b) The proposer(s) adequately establishes that the proposed
research has strong potential for advancing the state-of-the-art and
contributing significantly to the United States science and technology
base and to address areas of critical national need through
transforming the Nation's capacity to deal with a major societal
challenge(s) that is not currently being addressed, and generate
substantial benefits to the Nation that extend significantly beyond the
direct return to the proposer including an explanation in the proposal:
(1) Of the potential magnitude of transformational results upon the
Nation's capabilities in an area;
(2) Of how and when the ensuing transformational results will be
useful to the Nation; and
(3) Of the capacity and commitment of each award participant to
enable or advance the transformation to the proposed research results
(technology).
Total weight of (b)(1) through (3) is 50%.
Sec. 296.22 Award criteria.
NIST must determine that a proposal successfully meets all of the
Award Criteria set forth in this section for the proposal to receive
funding under the Program. The Award Criteria are:
(a) The proposal explains why TIP support is necessary, including
evidence that the research will not be conducted within a reasonable
time period in the absence of financial assistance from TIP;
(b) The proposal demonstrates that reasonable and thorough efforts
have been made to secure funding from alternative funding sources and
no other alternative funding sources are reasonably available to
support the proposal;
(c) The proposal explains the novelty of the research (technology)
and demonstrates that other entities have not already developed,
commercialized, marketed, distributed, or sold similar research results
(technologies);
(d) The proposal establishes that the research has strong potential
for advancing the state-of-the-art and contributing significantly to
the United States science and technology knowledge base;
(e) The proposal has scientific and technical merit and may result
in intellectual property vesting in a United States entity that can
commercialize the technology in a timely manner; and
(f) The proposal establishes that the proposed transformational
research (technology) has strong potential to address areas of critical
national need through transforming the Nation's capacity to deal with
major societal challenges that are not currently being addressed, and
generate substantial benefits to the Nation that extend significantly
beyond the direct return to the proposer.
Subpart C--Dissemination of Program Results
Sec. 296.30 Monitoring and evaluation.
The Program will provide monitoring and evaluation of areas of
critical national need and its investments through periodic analyses.
It will develop methods and metrics for assessing impact at all stages.
These analyses will contribute to the establishment and adoption of
best practices.
Sec. 296.31 Dissemination of results.
Results stemming from the analyses required by Sec. 296.30 will be
disseminated in periodic working papers, fact sheets, and meetings,
which will address the progress that the Program has made from both a
project and a portfolio perspective. Such disseminated results will
serve to educate both external constituencies as well as internal
audiences on research results, best practices, and recommended changes
to existing operations based on solid analysis.
Sec. 296.32 Technical and educational services.
(a) Under the Federal Technology Transfer Act of 1986, NIST has the
authority to enter into cooperative research and development agreements
with non-Federal parties to provide personnel, services, facilities,
equipment, or other resources except funds toward the conduct of
specified research or development efforts which are consistent with the
missions of the laboratory. In turn, NIST has the authority to accept
funds, personnel, services, facilities, equipment and other resources
from the non-Federal party or parties for the joint research effort.
Cooperative research and development agreements do not include
procurement contracts or cooperative agreements as those terms are used
in sections 6303, 6304, and 6305 of Title 31, United States Code.
(b) In no event will NIST enter into a cooperative research and
development agreement with a recipient of an award under the Program
which provides for the payment of Program funds from the award
recipient to NIST.
(c) From time to time, TIP may conduct public workshops and
undertake other educational activities to foster the collaboration of
funding Recipients with other funding resources
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for purposes of further development and diffusion of TIP-related
technologies. In no event will TIP provide recommendations,
endorsements, or approvals of any TIP funding Recipients to any outside
party.
Sec. 296.33 Annual report.
The Director shall submit annually to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on Science
and Technology of the House of Representatives a report describing the
Technology Innovation Program's activities, including a description of
the metrics upon which award funding decisions were made in the
previous fiscal year, any proposed changes to those metrics, metrics
for evaluating the success of ongoing and completed awards, and an
evaluation of ongoing and completed awards. The first annual report
shall include best practices for management of programs to stimulate
high-risk, high-reward research.
[FR Doc. E8-4562 Filed 3-6-08; 8:45 am]
BILLING CODE 3510-13-P