(d) A statement as to whether the deviation has been requested previously, and if so, circumstances of the previous request;

(e) The name of the grantee and identification of the grant affected, including the dollar value; and

(f) Detailed reasons supporting the request, including any pertinent background information which will contribute to a fuller understanding of the deviation sought.

§ 30.1001-3 Approval of deviation.

Deviations from this Regulation will be authorized only when essential to effect necessary grant actions or where special circumstances make such deviations clearly in the best interests of the Government. Such deviations may be approved only by the Director of the Grants Administration Division or his duly authorized representative, and a copy of such written approval shall be retained in the grant file.

PART 35-STATE AND LOCAL
ASSISTANCE [RESERVED]

PART 40-RESEARCH AND DEMONSTRATIONS [RESERVED] PART 45-TRAINING GRANTS AND FELLOWSHIPS [RESERVED]

APPENDIX A

GENERAL GRANT CONDITIONS

1. Access: The Government and any persons designated by the Grants Officer shall at all reasonable times have access to the premises where any portion of the project for which the grant was awarded is being performed. Subsequent to cessation of EPA grant support EPA personnel shall at all reasonable times have access to the project records (as defined in Article 2, below) and to the project site, to the full extent of the Grantee's right to access.

2. Audit and records: (a) The grantee shall maintain books, records, documents, and other evidence and accounting procedures and practices, sufficient to reflect properly (1) the amount, receipt and disposition by the grantee of all assistance received for the project, including both Federal assistance and any matching share or cost sharing, and (2) the total cost of the project, including all direct and indirect costs of whatever nature incurred for the performance of the project for which the EPA grant has been awarded. The foregoing constitute "records" for the purposes of this article.

(b) The grantee's facilities, or such facilities as may be engaged in the performance of

the project for which the EPA grant has been awarded, and his records shall be subject at all reasonable times to inspection and audit by the Grants Officer, the Comptroller General of the United States, or any authorized representative, until completion of the project for which the EPA grant was awarded.

(c) The grantee shall preserve and make his records available to the Grants Officer, the Comptroller General of the United States, or any authorized representative (1) until expiration of 3 years from the date of final payment under this grant, or of the time periods for the particular records specified in 41 CFR Part 1-20, whichever expires earlier, and (2) for such longer period, if any, as is required by applicable statute or lawful requirement, or by (1) or (2) below.

(1) If this grant is terminated completely or partially, the records relating to the work terminated shall be preserved and made available for a period of 3 years from the date of any resulting final termination settlement.

(2) Records which relate to (i) appeals under the "Disputes" clause of this grant, (ii) litigation or the settlement of claims arising out of the performance of the project for which this grant was awarded, or (iii) costs and expenses of the project as to which exception has been taken by the Grants Officer or any of his duly authorized representatives, shall be retained until such appeals, litigation, claims, or exceptions have been disposed of.

3. Reports: The grantee shall prepare and file with the Grants Officer an acceptable final report and such progress, financial and other reports relating to the conduct and results of the approved project as are specified in the grant agreement. Failure to timely submit reports required by the grant agreement may result in (a) retention of grant funds pursuant to EPA-GR 30.602-1, (b) suspension of the grant pursuant to Article 4, EPA General Grant Conditions, (c) termination of the grant pursuant to Article 5, EPA General Grant Conditions, (d) a finding of nonresponsibility for future EPA grant awards pursuant to EPA-GR 30.304, or (e) such other action as the Grants Officer may be authorized to take.

4. Stop-work order: (a) The Grants Officer may, at any time, by written order to the grantee, require the grantee to stop all, or any part of the project work for a period of not more than thirty (30) 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 shall 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. Within a period of not more than thirty (30) days after a stopwork order is delivered to the grantee, or within any extension of that period to which

the parties shall have agreed, the Grants Officer shall either

(1) Cancel the stop-work order, or

(2) Terminate the work covered by such order as provided in the "Termination" article of this grant.

(b) If a stop-work order issued under this article is canceled or the period of the order or any extension thereof expires, the grantee shall resume work. An equitable adjustment shall be made in the grant period, the project period, or grant amount, or all of these, and the grant instrument shall be amended accordingly, if:

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

(2) The grantee asserts a written claim for such adjustment within thirty (30) days after the end of the period of work stoppage: Provided, That if the Grants Officer decides the circumstances justify such action, he may receive and act upon any such claim asserted at any time prior to final payment under this grant.

(c) If a stop-work order is not canceled and the work covered by such order is terminated, the reasonable costs resulting from the stop-work order shall be allowed in arriving at the termination settlement.

(d) Costs incurred by the grantee after a stop-work order is delivered, or within any extension of the stop-work period to which the parties shall have agreed, which are not authorized by this article or by the Grants Officer shall not be allowable costs.

5. Termination: (a) Grant Termination by EPA. The Grants Officer, by written notice and after consultation with the grantee, may terminate the grant, in whole or in part: Provided, That such termination action has been authorized and approved by the appropriate EPA official (s) superior to the Grants Officer. Cause for termination shall include, but not be limited to, default by the grantee, failure by the grantee to comply with the terms and conditions of the grant, realignment of programs, change in program requirements or priorities, lack of adequate funding, or advancements in the state of the art. Upon such termination, the grantee shall refund to the United States any unexpended grant funds, except such portion thereof 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.

(b) Project termination by grantee. A grantee may not terminate a project for which the grant has been awarded, except for good cause. If the Grants Officer finds that there is good cause for the termination of all or any portion of a project for which the grant has been awarded, he shall enter into a termination agreement or unilaterally terminate the grant, effective with the date of termination of the project by the grantee. If the Grants Officer finds that the grantee has terminated the project without good

cause, then he shall annul the grant and all EPA grant funds previously paid or owing to the grantee shall be returned to the United States as final settlement.

6. Project changes: The grantee shall promptly notify the Grants Officer in writing of all project changes pursuant to the provisions of EPA-GR 30.900. The Grants Officer may disapprove proposed project changes by written notice to the grantee within 3 weeks after receipt of notice. Failure on the part of the grantee to give timely notice of proposed project changes or disapproval by the Grants Officer of a project change may result in disallowance of costs incurred which are attributable to the change or in termination of the grant. Neither approval nor failure to disapprove a project change shall commit or obligate the United States to any increase in the amount of the grant or payments thereunder, but shall not preclude consideration of a request for a grant amendment. A grant amendment may not alter the objective or scope of a project for which the grant has been awarded.

7. Disputes: (a) Except as otherwise provided by law or any other grant provision, any dispute arising under this grant which is not disposed of by agreement shall be decided by the Grants Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the grantee. The decision of the Grants Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the grantee mails or otherwise furnishes to the Grants Officer a written appeal address to 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 necessarily to imply bad faith, or not supported by substantial evidence. In connection with an appeal proceeding under this clause, the grantee shall be afforded an opportunity to be heard and to offer evidence in support of any appeal.

(b) This "disputes" clause does not preclude consideration of questions of law in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this grant shall be construed as making final the decision of any administrative official, representative, or board, on a question of law.

8. Equal opportunity: During the performance of the project for which this grant is awarded, the grantee agrees to comply with the Civil Rights Act of 1964, 42 U.S.C. 2000a et seq., as amended and all Executive Orders and regulations promulgated pursuant

thereto.

9. Covenant against contingent fees: The grantee warrants that no person or agency has been employed or retained to solicit or secure this grant upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona

fide employees or bona fide offices established and maintained by the grantee for the purpose of securing grants or business. For breach or violation of this warranty, the Government shall have the right to annul this grant without liability or in its discretion to deduct from the grant award, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee.

10. Officials not to benefit: No member of, or delegate to Congress, or Resident Commissioner, shall be permitted to any share, or part of this grant, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this grant if made with a corporation for its general benefit.

11. Subagreements: All subagreements in excess of $2,500 and not identified in the approved budget require the written approval of the Grants Officer. All subagreements must be in writing. A subagreement may not be in the nature of a grant. A copy of each subagreement shall be furnished to the Grants Officer upon request.

12. Requirements pertaining to federally assisted construction: The grantee warrants and represents that during the performance of work on the project for which this grant has been awarded, it will comply, and will ensure that parties to subagreements will comply, with the following requirements:

(a) The Davis-Bacon Act, as amended, 40 U.S.C. 276a et seq., 276c, and the regulations issued thereunder, 29 CFR 5.1 et seq., respecting wage rates for federally assisted construction contracts in excess of $2,000;

(b) The Copeland (Anti-Kickback) Act, 18 U.S.C. 874, 40 U.S.C. 276c, and the regulations issued thereunder, 29 CFR 3.1 et seq.; (c) The Contract Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq., and the regulations issued thereunder;

(d) The Uniform Relocation Assistance and Land Acquisition Policies Act of 1970, 42 U.S.C. 4621 et seq., 4651 et seq.;

(e) Convict labor shall not be used in such construction unless it is labor performed by convicts who are on work release, parole or probation.

[36 F.R. 22724, Nov. 27, 1971]

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, or research 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, (1) 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 America.

(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 of 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 term "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 F.R. 16,889, August 26, 1971.

B. Domestic patent rights in Subject Inventions: (1) The grantee agrees that he will promptly disclose to the Grants 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 Grants 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, 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. The Government may upon written request, grant to the grantee a revocable or irrevocable, deemed appropriate, royalty-free and nonexclusive license to practice the Subject Invention. Any such license granted shall extend to any existing and future companies, controlled by, controlling or under com

mon

as

control with the grantee and shall be assignable to the successor of the part of the grantee's business to which such invention pertains.

(3) Not later than (3) months after the disclosure of a Subject Invention pursuant to paragraph (1) of this section, and without regard to whether the invention is a primary object of this grant, the grantee may submit a request in writing to the Grants Officer for a determination by the Administrator leaving the grantee greater rights than that reserved to the grantee in paragraph (2) of this section. Such request should set forth information and facts which in the grantee's opinion, would 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 commercial 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:

(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 circumstances, 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 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 on 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 Grants 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 six (6) month period but elects not to continue prosecution of such application, he shall so notify the Grants Officer not less than sixty (60) 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 Inventions subject to the reservation to the grantee of a royalty-free, 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.

C. Foreign rights and obligations: (1) Subject to the waiver provisions of paragraph (2) of this section, 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.

(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 Grants 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 Grants Officer may revoke such authorization on failure on the part of the grantee to file any such foreign applica

tion 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, 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 or future treaties or agreements between the Government and a foreign government for uses of such foreign government, provided the Administrator determines that it is in the national interest to acquire such right to sublicense. The grantee further agrees to grant under such foreign patents a nonexclusive royalty-free license (i) to sell and to use, but not to make, any composition of matter, article of manufacture, apparatus or system, made under a license granted by the Government to practice the Subject Invention in the United States, and (ii) to practice any process comprising the Subject Invention. Said licensees must be U.S. citizens or U.S. corporations in which 75 percent of the voting stock is owned by U.S. citizens.

(5) In the event the Government or the grantee elects not to continue prosecuting any foreign application or to maintain any foreign patent on a Subject Invention, the other party shall be notified no less than sixty (60) days before the expiration of the response period or maintenance tax due date, and upon written request, shall execute such instruments (prepared by the party wishing to continue the prosecution or to maintain such patent) as are necessary to enable such party to carry out its wishes in this regard.

D. Licenses under Background Patents: (1) The grantee agrees that he will make his Background Patent (s) available for use in conjunction with a Subject Invention or Specified Work Object for use in the specific field of technology in which the purpose of this grant or the work called for or required thereunder falls. This may be done (i) by making available, in quality, quantity, and price all of which are reasonable to the circumstances, an embodiment of the Subject Invention or Specified Work Object, which incorporates the invention covered by such Background Patent, as a Commercial Item, or (ii), by the sale or an embodiment of such Background Patent as a Commercial Item in a form which can be employed in the practice of a Subject Invention or Specified Work Object or can be so employed with relatively minor modifications, or (iii) by the licensing of the domestic Background Patent(s) at reasonable royalty to responsible applicants on their request.

(2) If the Administrator determines after a hearing that the quality, quantity, or price of embodiments of the Subject Invention or Specified Work Object sold or otherwise made available commercially as set forth in (D)