[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR74.36]



[Page 118-119]

 

                           TITLE 34--EDUCATION

 

PART 74_ADMINISTRATION OF GRANTS AND AGREEMENTS WITH INSTITUTIONS OF 

HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS--Table 

of Contents

 

                    Subpart C_Post-Award Requirements

 

Sec.  74.36  Intangible property.



    (a) The recipient may copyright any work that is subject to 

copyright and was developed, or for which ownership was purchased, under 

an award. ED and any other Federal awarding agency reserve a royalty-

free, nonexclusive, and irrevocable right to reproduce, publish, or 

otherwise use the work for Federal purposes, and to authorize others to 

do so.

    (b) Recipients are subject to applicable regulations governing 

patents and inventions, including government-wide regulations issued by 

the Department of Commerce at 37 CFR Part 401--Rights to Inventions Made 

by Nonprofit Organizations and Small Business Firms Under Government 

Grants, Contracts and Cooperative Agreements.

    (c) The Federal Government has the right to:

    (1) Obtain, reproduce, publish or otherwise use the data first 

produced under an award; and

    (2) Authorize others to receive, reproduce, publish, or otherwise 

use such data for Federal purposes.

    (d)(1) In addition, in response to a Freedom of Information Act 

(FOIA) request for research data relating to published research findings 

produced under an award that were used by the Federal Government in 

developing an agency action that has the force and effect of law, ED 

shall request, and the recipient shall provide, within a reasonable 

time, the research data so that they can be made available to the public 

through the procedures established under the FOIA. If ED obtains the 

research data solely in response to a FOIA request, the agency may 

charge the requester a reasonable fee equaling the full incremental cost 

of obtaining the research data. This fee should reflect costs incurred 

by the agency, the recipient, and applicable subrecipients. This fee is 

in addition to any fees the agency may assess under the FOIA (5 U.S.C. 

552(a)(4)(A)).

    (2) The following definitions apply for purposes of this paragraph 

(d):

    (i) Research data is defined as the recorded factual material 

commonly accepted in the scientific community as necessary to validate 

research findings, but not any of the following: preliminary analyses, 

drafts of scientific papers, plans for future research, peer reviews, or 

communications with colleagues. This ``recorded'' material excludes 

physical objects (e.g., laboratory samples). Research data also do not 

include:

    (A) Trade secrets, commercial information, materials necessary to be 

held confidential by a researcher until they are published, or similar 

information which is protected under law; and

    (B) Personnel and medical information and similar information the 

disclosure of which would constitute a



[[Page 119]]



clearly unwarranted invasion of personal privacy, such as information 

that could be used to identify a particular person in a research study.

    (ii) Published is defined as either when:

    (A) Research findings are published in a peer-reviewed scientific or 

technical journal; or

    (B) A Federal agency publicly and officially cites the research 

findings in support of an agency action that has the force and effect of 

law.

    (iii) Used by the Federal Government in developing an agency action 

that has the force and effect of law is defined as when an agency 

publicly and officially cites the research findings in support of an 

agency action that has the force and effect of law.

    (e) Title to intangible property and debt instruments acquired under 

an award or subaward vests upon acquisition in the recipient. The 

recipient shall use that property for the originally-authorized purpose, 

and the recipient shall not encumber the property without approval of 

the Secretary. When no longer needed for the originally authorized 

purpose, disposition of the intangible property shall occur in 

accordance with the provisions of Sec.  74.34(g).



(Authority: 20 U.S.C. 1221e-3, 3474; OMB Circular A-110)



[59 FR 34724, July 6, 1994, as amended at 65 FR 14407, 14416, Mar. 16, 

2000]