42 U.S.C. § 283k — Biomedical and behavioral research facilities

**(a) Modernization and construction of facilities** (1) **In general** — The Director of NIH, acting through the Office of the Director of NIH or the Director of the National Institute of Allergy and Infectious Diseases, may make grants or contracts to public and nonprofit private entities to expand, remodel, renovate, or alter existing research facilities or construct new research facilities, subject to the provisions of this section. (2) **Construction and cost of construction** — For purposes of this section, the terms “construction” and “cost of construction” include the construction of new buildings and the expansion, renovation, remodeling, and alteration of existing buildings, including architects’ fees, but do not include the cost of acquisition of land or off-site improvements. **(b) Scientific and technical review boards for merit-based review of proposals** (1) **In general: approval as precondition to grants** (A) *Establishment* — There is established a Scientific and Technical Review Board on Biomedical and Behavioral Research Facilities (referred to in this section as the “Board”). (B) *Requirement* — The Director of NIH, acting through the Office of the Director of NIH, may approve an application for a grant under subsection (a) only if the Board has under paragraph (2) recommended the application for approval. (2) **Duties** (A) *Advice* — The Board shall provide advice to the Director of NIH and the Council of Councils established under section 282(l) of this title (in this section referred to as the “Council”) in carrying out this section. (B) *Determination of merit* — In carrying out subparagraph (A), the Board shall make a determination of the merit of each application submitted for a grant under subsection (a), after consideration of the requirements established in subsection (c), and shall report the results of the determination to the Director of NIH and the Council. Such determinations shall be conducted in a manner consistent with procedures established under [section 289a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section289a&num=0&edition=prelim). (C) *Amount* — In carrying out subparagraph (A), the Board shall, in the case of applications recommended for approval, make recommendations to the Director and the Council on the amount that should be provided under the grant. (D) *Annual report* — In carrying out subparagraph (A), the Board shall prepare an annual report for the Director of NIH and the Council describing the activities of the Board in the fiscal year for which the report is made. Each such report shall be available to the public, and shall— (i) summarize and analyze expenditures made under this section; (ii) provide a summary of the types, numbers, and amounts of applications that were recommended for grants under subsection (a) but that were not approved by the Director of NIH; and (iii) contain the recommendations of the Board for any changes in the administration of this section. (3) **Membership** (A) *In general* — Subject to subparagraph (B), the Board shall be composed of 15 members to be appointed by the Director of NIH, acting through the Office of the Director of NIH, and such ad-hoc or temporary members as the Director of NIH, acting through the Office of the Director of NIH, determines to be appropriate. All members of the Board, including temporary and ad-hoc members, shall be voting members. (B) *Limitation* — Not more than three individuals who are officers or employees of the Federal Government may serve as members of the Board. (4) **Certain requirements regarding membership** — In selecting individuals for membership on the Board, the Director of NIH, acting through the Office of the Director of NIH, shall ensure that the members are individuals who, by virtue of their training or experience, are eminently qualified to perform peer review functions. In selecting such individuals for such membership, the Director of NIH, acting through the Office of the Director of NIH, shall ensure that the members of the Board collectively— (A) are experienced in the planning, construction, financing, and administration of entities that conduct biomedical or behavioral research sciences; (B) are knowledgeable in making determinations of the need of entities for biomedical or behavioral research facilities, including such facilities for the dentistry, nursing, pharmacy, and allied health professions; (C) are knowledgeable in evaluating the relative priorities for applications for grants under subsection (a) in view of the overall research needs of the United States; and (D) are experienced with emerging centers of excellence, as described in subsection (c)(2). (5) **Certain authorities** (A) *Workshops and conferences* — In carrying out paragraph (2), the Board may convene workshops and conferences, and collect data as the Board considers appropriate. (B) *Subcommittees* — In carrying out paragraph (2), the Board may establish subcommittees within the Board. Such subcommittees may hold meetings as determined necessary to enable the subcommittee to carry out its duties. (6) **Terms** (A) *In general* — Except as provided in subparagraph (B), each appointed member of the Board shall hold office for a term of 4 years. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which such member’s predecessor was appointed shall be appointed for the remainder of the term of the predecessor. (B) *Staggered terms* — Members appointed to the Board shall serve staggered terms as specified by the Director of NIH, acting through the Office of the Director of NIH, when making the appointments. (C) *Reappointment* — No member of the Board shall be eligible for reappointment to the Board until 1 year has elapsed after the end of the most recent term of the member. (7) **Compensation** — Members of the Board who are not officers or employees of the United States shall receive for each day the members are engaged in the performance of the functions of the Board compensation at the same rate received by members of other national advisory councils established under this subchapter. **(c) Requirements for grants** (1) **In general** — The Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases, may make a grant under subsection (a) only if the applicant for the grant meets the following conditions: (A) The applicant is determined by such Director to be competent to engage in the type of research for which the proposed facility is to be constructed. (B) The applicant provides assurances satisfactory to the Director that— (i) for not less than 20 years after completion of the construction involved, the facility will be used for the purposes of the research for which it is to be constructed; (ii) sufficient funds will be available to meet the non-Federal share of the cost of constructing the facility; (iii) sufficient funds will be available, when construction is completed, for the effective use of the facility for the research for which it is being constructed; and (iv) the proposed construction will expand the applicant’s capacity for research, or is necessary to improve or maintain the quality of the applicant’s research. (C) The applicant meets reasonable qualifications established by the Director with respect to— (i) the relative scientific and technical merit of the applications, and the relative effectiveness of the proposed facilities, in expanding the capacity for biomedical or behavioral research and in improving the quality of such research; (ii) the quality of the research or training, or both, to be carried out in the facilities involved; (iii) the congruence of the research activities to be carried out within the facility with the research and investigator manpower needs of the United States; and (iv) the age and condition of existing research facilities. (D) The applicant has demonstrated a commitment to enhancing and expanding the research productivity of the applicant. (2) **Institutions of emerging excellence** — From the amount appropriated to carry out this section for a fiscal year up to $50,000,000, the Director of NIH, acting through the Office of the Director of NIH, shall make available 25 percent of such amount, and from the amount appropriated to carry out this section for a fiscal year that is over $50,000,000, the Director of NIH, acting through the Office of the Director of NIH, shall make available up to 25 percent of such amount, for grants under subsection (a) to applicants that in addition to meeting the requirements established in paragraph (1), have demonstrated emerging excellence in biomedical or behavioral research, as follows: (A) The applicant has a plan for research or training advancement and possesses the ability to carry out the plan. (B) The applicant carries out research and research training programs that have a special relevance to a problem, concern, or unmet health need of the United States. (C) The applicant has been productive in research or research development and training. (D) The applicant— (i) has been designated as a center of excellence under section 293c 11 See References in Text note below. of this title; (ii) is located in a geographic area whose population includes a significant number of individuals with health status deficit, and the applicant provides health services to such individuals; or (iii) is located in a geographic area in which a deficit in health care technology, services, or research resources may adversely affect the health status of the population of the area in the future, and the applicant is carrying out activities with respect to protecting the health status of such population. **(d) Requirement of application** The Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases, may make a grant under subsection (a) only if an application for the grant is submitted to the Director and the application is in such form, is made in such manner, and contains such agreements, assurances, and information as the Director determines to be necessary to carry out this section. **(e) Amount of grant; payments** (1) **Amount** — The amount of any grant awarded under subsection (a) shall be determined by the Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases,,22 So in original. except that such amount shall not exceed— (A) 50 percent (or, in the case of the Institute, 75 percent) of the necessary cost of the construction of a proposed facility as determined by the Director; or (B) in the case of a multipurpose facility, 40 percent (or, in the case of the Institute, 75 percent) of that part of the necessary cost of construction that the Director determines to be proportionate to the contemplated use of the facility. (2) **Reservation of amounts** — On the approval of any application for a grant under subsection (a), the Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases, shall reserve, from any appropriation available for such grants, the amount of such grant, and shall pay such amount, in advance or by way of reimbursement, and in such installments consistent with the construction progress, as the Director may determine appropriate. The reservation of any amount by the Director under this paragraph may be amended by the Director, either on the approval of an amendment of the application or on the revision of the estimated cost of construction of the facility. (3) **Exclusion of certain costs** — In determining the amount of any grant under subsection (a), there shall be excluded from the cost of construction an amount equal to the sum of— (A) the amount of any other Federal grant that the applicant has obtained, or is assured of obtaining, with respect to construction that is to be financed in part by a grant authorized under this section; and (B) the amount of any non-Federal funds required to be expended as a condition of such other Federal grant. (4) **Waiver of limitations** — The limitations imposed under paragraph (1) may be waived at the discretion of the Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases, for applicants meeting the conditions described in subsection (c). **(f) Recapture of payments** If, not later than 20 years after the completion of construction for which a grant has been awarded under subsection (a)— (1) in the case of an award by the Director of NIH, acting through the Office of the Director of NIH, the applicant or other owner of the facility shall cease to be a public or non profit 33 So in original. Probably should be “nonprofit”. private entity; or (2) the facility shall cease to be used for the research purposes for which it was constructed (unless the Director of NIH, acting through the Office of the Director of NIH or the National Institute of Allergy and Infectious Diseases, determines, in accordance with regulations, that there is good cause for releasing the applicant or other owner from obligation to do so), the United States shall be entitled to recover from the applicant or other owner of the facility the amount bearing the same ratio to the current value (as determined by an agreement between the parties or by action brought in the United States District Court for the district in which such facility is situated) of the facility as the amount of the Federal participation bore to the cost of the construction of such facility. **(g) Guidelines** Not later than 6 months after June 10, 1993, the Director of NIH, acting through the Office of the Director of NIH, after consultation with the Council, shall issue guidelines with respect to grants under subsection (a).