(a) Commercial research and development activities involving new microorganisms or significant new uses of microorganisms are subject to reporting under this part unless they qualify for an exemption under this part.
(b) Commercial purposes for research and development means that the activities are conducted with the purpose of obtaining an immediate or eventual commercial advantage for the researcher and would include:
(1) All research and development activities which are funded directly, in whole or in part, by a commercial entity regardless of who is actually conducting the research. Indications that the research and development activities are funded directly, in whole or in part, may include, but are not limited to:
(i) Situations in which a commercial entity contracts directly with a university or researcher; or
(ii) Situations in which a commercial entity gives a conditional grant where the commercial entity holds patent rights, or establishes a joint venture where the commercial entity holds patent or licensing rights; or
(iii) Any other situation in which the commercial entity intends to obtain an immediate or eventual commercial advantage for the commercial entity and/or the researcher.
(2) Research and development activities that are not funded directly by a commercial entity, if the researcher intends to obtain an immediate or eventual commercial advantage. Indications that the researcher intends to obtain an immediate or eventual commercial advantage may include, but are not limited to:
(i) The research is directed toward developing a commercially viable improvement of a product already on the market; or
(ii) The researcher has sought or is seeking commercial funding for the purpose of developing a commercial application; or
(iii) The researcher or university has sought or is seeking a patent to protect a commercial application which the research is developing; or
(iv) Other evidence that the researcher is aware of a commercial application for the research and has directed the research toward developing that application.
(c) Certain research and development activities involving microorganisms subject to jurisdiction under the Act are exempt from reporting under this part. A person conducting research and development activities which meet the conditions for the exemptions described in §§ 725.232, 725.234, or 725.238 is exempt from TERA reporting under this subpart.
(d) A microorganism is not exempt from reporting under subpart D of this part if any amount of the microorganism, including as part of a mixture, is processed, distributed in commerce, or used, for any commercial purpose other than research and development.
(e) Quantities of the inactivated microorganism, or mixtures or articles containing the inactivated microorganism, remaining after completion of research and development activities may be disposed of as a waste in accordance with applicable Federal, State, and local regulations.
(f) A person who manufactures, imports, or processes a microorganism solely for research and development is not required to comply with the requirements of this section if:
(1) The person is manufacturing a microbial pesticide identified in § 172.45(c), or
(2) The person is manufacturing a microbial pesticide for which an Experimental Use Permit is required, pursuant to § 172.3; or
(3) The person is manufacturing a microbial pesticide for which a notification or an Experimental Use Permit is not required to be submitted.