• Title 45--PUBLIC WELFARE
  • Part C--Post-Award Requirements
    • Section 74.36 Intangible property.

[Code of Federal Regulations]


[Title 45, Volume 1]


[Revised as of October 1, 2003]


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


[CITE: 45CFR74.36]





[Page 220-221]


 


                        TITLE 45--PUBLIC WELFARE


 


                           AND HUMAN SERVICES


 


                   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. The HHS awarding agency reserves 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, the 


HHS Awarding Agency 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 the HHS Awarding Agency 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)).





[[Page 221]]





    (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 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.


    (3) The requirements set forth in paragraph (d)(1) of this section 


do not apply to commercial organizations.


    (e) Title to intangible property and debt instruments purchased or 


otherwise 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 HHS awarding agency. 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) 


and (h).





[59 FR 43760, Aug. 25, 1994, as amended at 65 FR 14407, 14418, Mar. 16, 


2000]