Government or admitted to the appeal record (subject to the Government's right to offer its own evidence and testimony, to cross-examine the appellant's witnesses, and to examine documentation or exhibits offered in evidence by the appellant or admitted to the appeal record). The appeal shall be determined solely upon the appeal record.

§ 30.1120 Decision of the Administrator.

The decision of the Administrator or his duly authorized representative for the determination of such appeal shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent or capricious, or arbitrary, or so grossly erroneous as to imply bad faith, or not supported by substantial evidence.

§ 30.1125 Questions of law.

Any question of law may be considered in connection with decisions provided for by this subpart. Nothing in the grant agreement or related regulations, however, shall be construed as making final the decision of any administrative official, representative, or board, on a question of law.

§ 30.1130 Delegation of authority.

The General Counsel is authorized to appoint hearing examiners to hear and decide grant appeals from final dispute determinations under this subpart.

[43 FR 28489, June 30, 1078]

§ 30.1150 Appeal procedures.

The procedures for grant appeals under this subpart shall be those designated by the General Counsel. A copy of such procedures may be obtained from the Office of General Counsel.

[43 FR 28489, June 30, 1078]

APPENDIX A-GENERAL GRANT
CONDITIONS

a. General Conditions. The grantee covenants and agrees that it will expeditiously initiate and timely complete the project work for which assistance has been awarded under this grant, in accordance with the applicable grant provisions of 40 CFR Sub

chapter B. The grantee warrants, represents, and agrees that it, and its contractors, subcontractors, employees and representatives, will comply with 40 CFR Subchapter B, the following General Conditions, the applicable supplemental conditions of 40 CFR Subchapter B, as amended, and any Special Conditions set forth in this grant agreement or any grant amendment.

1. Access. The grantee agrees that it will provide access to the facilities, premises and records related to the project as provided in §§ 30.605 and 30.805 of 40 CFR Subchapter B.

2. Audit and records. The grantee agrees that it will maintain an adequate system for financial management, property management and grantee audit in accordance with §§ 30.800 and 30.810-3, and that it will maintain, preserve and make availalbe to the Government all project records for the purpose of inspection, interim and final audit, and copying as required by §§ 30.605, 30.805, and 30.820 or 40 CFR Subchapter B.

3. Reports. The grantee agrees to timely file with EPA such reports as are specifically required by the grant agreement or pursuant to 40 CFR Subchapter B, including progress reports (§ 30.635-1), financial reports (§ 30.635-3), invention reports (§ 30.635-4), property reports (§ 30.635-5), relocation and acquisition reports (§ 30.6356) and a final report (§ 30.635 2), and that failure to timely file a report may cause EPA to invoke the remedies provided in 40 CFR 30.430.

4. Project changes; Grant modifications. The grantee agrees that notification of project changes will be given pursuant to 40 CFR 30.900(b) and that all grant modifications will be effected in accordance with 40 CFR 30.900 through 30.900-4.

5. Requirements pertaining to federally assisted construction. The grantee agrees that it will comply, and that its contractors, subcontractors, employees and representatives will comply, with the requirements pertaining to federally assisted construction identified in 40 CFR 30.415.

6. Suspension. (a) The grantee agrees that the grant award official may, at any time, require the grantee to stop all, or any part, of the work within the scope of the project for which EPA grant assistance was awarded, by a written stop-work crder, for a period of not more than forty-five (45) days after the order is delivered to the grantee, and for any further period to which the parties may agree. Any such order shall be specifically identified as a stop-work order issued pursuant to this clause. Upon receipt of such an order, the grantee agrees to forthwith comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage.

This suspension article shall not be applicable to educational institutions or nonprofit research organizations.

(b) The grantee agrees that, within any such suspension period, EPA may either (1) cancel the stop-work order, in full or in part; or (2) initiate action to terminate the grant, in part or in full, as provided in Article 7, below; or (3) authorize resumption of work.

(c) If a stop-work order is canceled or if the suspension period or any extension thereof expires, the grantee agrees to promptly resume the previously suspended project work.

(d) An equitable adjustment shall be made in the project period, budget period, or the grant amount, or all of these as appropriate, if:

(1) The stop-work order results in an increase in the time required for, or in the grantee's costs properly allocable to, the performance of any part of the project, and

(2) The grantee asserts a written claim for such adjustment within sixty (60) days after the end of the period of work stoppage, Provided, That if the Project Officer determines that the circumstances justify such action (for example, if the impact of cost or time factors resulting from a stop-work order could not have been ascertained prior to written submission of the claim), he may receive and act upon any such claim asserted at any time prior to final payment under this grant.

(e) If a stop-work order is not canceled and grant-related project work covered by such order is within the scope of a subsequently-issued termination order, the reasonable costs resulting from the stop-work order shall be allowed in arriving at the termination settlement.

(f) The grantee agrees that costs incurred by the grantee or its contractors, subcontractors or representatives, after a stopwork order is delivered, or within any extension of the suspension period to which the parties may have agreed, with respect to the project work suspended by such order or agreement, which are not authorized by this article or specifically authorized in writing by the Project Officer shall not be allowable costs.

7. Termination; Annulment-(a) Grant Termination by EPA. The grantee agrees that the grant award official may, at any time, after written notice and after opportunity for consultation has been afforded to the grantee, terminate the grant, in whole or in part, through a written termination notice specifying the effective date of the termination action.

(1) A grant may be terminated by EPA for good cause, subject to negotiation and payment of termination settlement costs.

(2) The grantee agrees that, upon such termination, it will return or credit to the

United States that portion of grant funds paid or owed to the grantee and allocable to the terminated project work, except such portion as may be required by the grantee to meet commitments which had become firm prior to the effective date of termination and are otherwise allowable.

(3) Whenever feasible, the grant award official and the grantee shall enter into a termination agreement as soon as possible after any such termination action to establish the basis for settlement of grant termination costs and the amount and date of payment of any sums due to either party.

(b) Project termination by grantee. The grantee agrees that it will not unilaterally terminate work on the project for which EPA grant assistance has been awarded, except for good cause. The grantee further agrees:

(1) That it will promptly give written notice to the Project Officer of any complete or partial termination of the project work by the grantee, and

(2) That, if the Project Officer determines that the grantee has terminated the project work without good cause, the grant award official may annul the grant and all EPA grant funds previously paid or owing to the grantee shall be promptly returned or credited to the United States.

Upon request of the grantee, and if the Project Officer determines that there is good cause for the termination of all or any portion of the project work for which EPA grant assistance has been awarded, the grant award official and the grantee may enter into a written termination agreement establishing the effective date of the grant and project termination, the basis for settlement of grant termination costs, and the amount and date of payment of any sums due to either party.

(c) Annulment. The grantee agrees that the grant may be annuled pursuant to 40 CFR 30.920-5.

8. Disputes. (a) Except as otherwise provided by law or regulations, any dispute arising under this grant agreement shall be decided by the grant approving official or the Project Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the grantee. Such a decision shall be final and conclusive unless, within thirty (30) days from the date of receipt, the grantee mails or otherwise delivers to EPA (generally to the Project Officer) a written appeal addressed to the Administrator.

(b) The decision of the Administrator or his duly authorized representative for the determination of such appeal shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent or capricious, or arbitrary, or so

grossly erroneous as to imply bad faith, or not supported by substantial evidence.

(c) In connection with an appeal proceeding under this article, the grantee shall be afforded an opportunity to be heard, to be represented by legal counsel, to offer evidence and testimony in support of any appeal, and to cross-examine Government witnesses and to examine documentation or exhibits offered in evidence by the Government or admitted to the appeal record (subject to the Government's right to offer its own evidence and testimony, to cross-examine the appellant's witnesses, and to examine documentation or exhibits offered in evidence by the appellant or admitted to the appeal record). The appeal shall be determined solely upon the appeal record, in accordance with the applicable provisions of Subpart J of Part 30 of Title 40 CFR.

(d) This "Disputes" article shall not preclude consideration of any question of law in connection with decisions provided for by this article; Provided, That nothing in this grant or related regulations shall be construed as making final the decision of any administrative official, representative, or board, on a question of law.

9. Patents; rights in data, copyright. (a) Every EPA grant involving research, developmental, experimental, or demonstration work shall be subject to the patent provisions of Appendix B to 40 CFR Part 30.

(b) Every EPA grant shall be subject to the rights in data, and copyright provisions of Appendix C to 40 CFR Part 30.

10. Notice and assistance regarding patent and copyright infringement. (a) The grantee agrees to report to the Project Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this grant of which the grantee has knowledge.

(b) In the event of any claim or suit against the Government, on account of any alleged patent or copyright infringement arising out of the performance of this grant or out of the use of any supplies furnished or work or services performed hereunder, the grantee agrees to furnish to the Government, when requested by the Project Officer, all evidence and information in possession of the grantee pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Government except where the grantee has agreed to indemnify the Government.

Note: EPA Form 5700-20, Grant Agreement/Amendment was filed as part of the original document.

[40 FR 20952, May 14, 1975]

APPENDIX B-PATENTS AND INVENTIONS

A. Definitions. (1) "Background Patent" means a foreign or domestic patent (regardless of its date of issue relative to the date of the EPA grant):

(i) Which the grantee, but not the Government, has the right to license to others, and

(ii) Infringement of which cannot be avoided upon the practice of a Subject Invention or Specified Work Object.

(2) "Commercial Item" means

(i) Any machine, manufacture, or composition of matter which, at the time of a request for a license pursuant to Part D of this Appendix, has been sold, offered for sale or otherwise made available commercially to the public in the regular course of business, at terms reasonable in the circumstances, and

(ii) Any process which, at the time of a request for a license, is in commercial use, or is offered for commercial use, so the results of the process or the products produced thereby are or will be accessible to the public at terms reasonable in the circumstances.

(3) "Specified Work Object" means the specific process, method, machine, manufacture or composition of matter (including relatively minor modifications thereof) which is the subject of the experimental, developmental, research or demonstration work performed under this grant.

(4) "Grantee" is the party which has accepted this grant award and includes entities controlled by the grantee. The term "controlled" means the direct or indirect ownership of more than 50 percent of outstanding stock entitled to vote for the election of directors, or a directing influence over such stock; provided, however, that foreign entities not wholly owned by the grantee shall not be considered as "controlled."

(5) "Subagreement" includes subagreements at any tier under this grant.

(6) "Domestic" and "foreign" refer, respectively, (i) to the United States of America, including its territories and possessions, Puerto Rico and the District of Columbia and (ii) to countries other than the United States of America.

(7) "Government" means the Federal Government of the United States of Amer

ica.

(8) "Subject Invention" means any invention, discovery, improvement or development (whether or not patentable) made in the course of or under this grant or any subagreement (at any tier) thereunder.

(9) "Made," when used in connection with any invention, means the conception or first actual reduction to practice of such invention.

(10) To "practice an invention or patent" means the right of a licensee on his own behalf to make, have made, use or have used, sell or have sold, or otherwise dispose of according to law, any machine, design, manufacture, or composition of matter physically embodying the invention, or to use or have used the process or method comprising the invention.

(11) The phrase "to bring to the point of practical application" means to manufacture in the case of composition or product, to use in the case of a process, or to operate in the case of a machine and under such conditions as to establish that the invention is being worked and that its benefits are reasonably accessible to the public.

(12) "Statement" means the President's Patent Policy Statement of August 23, 1971, 36 FR 16889, August 26, 1971.

B. Domestic patent rights in Subject Inventions. (1) The grantee agrees that he will promptly disclose to the Project Officer in writing each Subject Invention in a manner sufficiently complete as to technical details to convey to one skilled in the art to which the invention pertains a clear understanding of the nature, purpose, operation and, as the case may be, the physical, chemical, biological, or electrical characteristics of the invention. However, if any Subject Invention is obviously unpatentable under the patent laws of the United States, such disclosure need not be made thereon. On request of the Project Officer, the grantee shall comment respecting the differences or similarities between the invention and the closest prior art drawn to his attention.

(2) Except in the instance of a determination, pursuant to paragraph (3) of this Section B., by the Administrator to leave to the grantee rights greater than a nonexclusive license, the grantee agrees to grant and does hereby grant to the Government the full and entire domestic right, title, and interest in the Subject Invention, subject to retention by the grantee of a revocable, nonexclusive, royalty-free license to practice the Subject Invention. Any such license granted shall extend to any existing and future companies controlled by, controlling or under common control with the grantee and shall be assignable to the successor of the part of the grantee's business to which such invention pertains. Said license to the grantee may be revoked by the Administrator or his designee if it is determined that it is necessary to issue an exclusive license, pursuant to then applicable Government regulations, in order to more expeditiously bring the invention to commercialization; provided, however, that the grantee shall be provided the opportunity to present to the Administrator reasons why said license should not be revoked.

(3) Not later than three (3) months after the disclosure of a Subject Invention pursu

ant to paragraph (1) of this Section B., and without regard to whether the invention is a primary object of this grant, the grantee may submit a request in writing to the Project Officer for a determination by the Administrator leaving the grantee greater rights than that reserved to the grantee in paragraph (2) of this Section B. Such request should set forth information and facts which in the grantee's opinion, should justify a determination that:

(i) In the case of a Subject Invention which is clearly a primary object of this grant, the acquisition of such greater rights by the grantee is both consistent with the intent of Section 1(a) of the Statement and is either a necessary incentive to call forth private risk capital and expense to bring the invention to the point of practical application or is justified because the Government's contribution to such invention is small compared to that of the grantee; or that

(ii) The Subject Invention is not a primary object of this grant, and that the acquisition of such greater rights will serve the public interest as expressed in the Statement, particularly when taking into account the scope and nature of the grantee's stated intentions to bring the invention to the point of practical application and the guidelines of Section 1(a) of the Statement. The Administrator will review the grantee's request for greater rights and will make a determination, either granting the request in whole or in part, or denying the request in its entirety. The grantee will be notified of such determination.

(4) In the event greater rights in any Subject Invention are vested in or granted to the grantee pursuant to paragraph (3) of this section B.:

(i) The grantee's rights in such inventions shall, as a minimum, be subject to a nonexclusive, nontransferable, paid-up license to the Government to practice the invention throughout the world by or on behalf of the Government (including any Government agency) and States and domestic municipal governments, unless the Administrator determines that it would not be in the public interest to acquire the license for the States and domestic municipal governments; and said license shall include the right to sublicense any foreign government pursuant to any existing or future treaty or agreement if the Administrator determines it would be in the national interest to acquire this right; and

(ii) The grantee further agrees to and does hereby grant to the Government the right to require the granting of a license to a responsible applicant(s) under any such invention:

(a) On a nonexclusive or exclusive basis on terms that are reasonable under the circum

stances, unless the grantee, its licensees or its assignees demonstrate to the Government, at the Government's request, that effective steps have been taken within three (3) years after a patent was issued on any such invention to bring it to the point of practical application, or that it has been made available for licensing royalty-free or in terms that are reasonable in the circumstances, or can show cause why the time period should be extended, or

(b) On a nonexclusive or exclusive basis on terms that are reasonable in the circumstances to the extent that the invention is required for public use by Governmental regulations or as may be necessary to fulfill health or safety needs or for such other public purposes as are stipulated in this grant; and

(iii) The grantee shall file in due form and within six (6) months of the granting of such greater rights a U.S. patent application claiming the Subject Invention and shall furnish, as soon as practicable, the information and materials required under paragraph (2) of Section F. As to each Subject Invention in which the grantee has been given greater rights, the grantee shall notify the Project Officer at the end of six (6) months period if he has failed to file or caused to be filed a patent application covering such invention. If the grantee has filed or caused to be filed such an application within a six (6) month period but elects not to continue prosecution of such application, he shall so notify the Project Officer, and EPA Patent Counsel not less than forty-five (45) days before the expiration of the response period. In either of the situations covered by the two immediately preceding sentences, the Government shall be entitled to all right, title, and interest in such Subject Invention subject to the reservation to the grantee of a revocable royaltyfree, nonexclusive license therein.

(iv) The grantee shall, if requested by the Government, either before or after final closeout of this grant, furnish written reports at reasonable intervals, as to:

(a) The commercial use that is being made or is intended to be made of such invention; (b) The steps taken by the grantee to bring such invention to the point of practical application, or to make the invention available for licensing.

(5) Even in the event the Government elects to take the full and entire domestic title and interest in a Subject Invention, the Project Officer may request, prior to grant closeout, that the grantee prepare a domestic patent application for filing in the United States Patent Office on such invention and deliver it to the Project Officer for filing by EPA. Reasonable costs incurred for the preparation of such application or any revision thereof requested by EPA shall be allowable project costs.

C. Foreign rights and obligations. (1) Subject to the waiver provisions of paragraph (2) of this section C., it is agreed that the entire foreign right, title, and interest in any Subject Invention shall be in the Government, as represented for this purpose by the Administrator. The Government agrees to grant and does hereby grant to the grantee a royalty-free nonexclusive license to practice the invention under any patent obtained on such Subject Invention in any foreign country. The license shall extend to existing and any future companies controlled by, controlling or under common control with the grantee, and shall be assignable to the successor of the part of the grantee's business to which such invention pertains.

(2) The grantee may request the foreign rights to a Subject Invention at any time subsequent to the reporting of such invention. The response to such request and notification thereof to the grantee will not be unreasonably delayed. The Government will waive title to the grantee to such Subject Invention in foreign countries in which the Government will not file an application for a patent for such invention, or otherwise secure protection therefor. Whenever the grantee is authorized to file in any foreign country the Government will not thereafter proceed with filing in such country except on the written agreement of the grantee, unless such authorization has been revoked pursuant to paragraph (3) of this Section C.

(3) In the event the grantee is authorized to file a foreign patent application on a Subject Invention, the Government agrees that it will use its best efforts not to publish a description of such invention until a United States or foreign application on such invention is filed, whichever is earlier, but neither the Government, its officers, agents or employees shall be liable for an inadvertent publication thereof. If the grantee is authorized to file in any foreign country, he shall, on request of the Project Officer, furnish to the Government a patent specification in English within six (6) months after such authorization is granted, prior to any foreign filing and without additional compensation. The Project Officer, after concurrence by the EPA Patent Counsel, may revoke such authorization on failure on the part of the grantee to file any such foreign application within nine (9) months after such authorization has been granted.

(4) If the grantee files patent applications in foreign countries pursuant to authorization granted under paragraph (2) of this section C., the grantee agrees to grant to the Government an irrevocable, nonexclusive, paid-up license to practice by or on its behalf the invention under any patents which may issue thereon in any foreign country. Such license shall include the right to issue sublicenses pursuant to any existing