6450-01-P DEPARTMENT OF ENERGY 2 CFR Part 910 [DOE-HQ-2024-0029] RIN 1991-AC18 Financial Assistance Regulations - Conflict of Interest and Conflict of Commitment Policy Requirements AGENCY: Department of Energy. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Energy (DOE or Department) is proposing to amend its Financial Assistance Regulations to establish conflict of interest and conflict of commitment policies and requirements for non-federal entities applying for or receiving financial assistance awards from the Department, and to implement and standardize certain disclosure requirements applicable to financial assistance applications and awards, including responsibilities, general rules, and procedures for non-federal entities to identify, evaluate, resolve, and report conflicts of interest, conflicts of commitment, and organizational conflicts of interest, in financial assistance applications and awards. DATES: Written comments on this proposed rule must be received on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. ADDRESSES: You may submit comments, identified by Financial Assistance Regulations Conflict of Interest and Conflict of Commitment Policy Requirements and RIN 1991-AC18, by any of the following methods: Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. E-mail to: COIrulemaking@hq.doe.gov: Include Financial Assistance Regulations Conflict of Interest Policy and RIN 1991-AC18 in the subject line of the message. Postal mail to: U.S. Department of Energy, Office of Acquisition Management, Contract and Financial Assistance Policy Division, MA–611, 1000 Independence Avenue, SW., Washington, DC 20585. Comments by e-mail are encouraged. No telefacsimiles (“faxesâ€) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section IV of this document. Docket: The docket for this activity, which includes Federal Register notices, comments, public meeting transcripts, and other supporting documents/materials, is available for review at www.regulations.gov and can be located by the docket number provided in the heading of this document. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. FOR FURTHER INFORMATION CONTACT: Ms. Krystal Paige, U.S. Department of Energy, Office of Acquisition Management, at (240) 404-8294 or by email at Krystal.Page@hq.doe.gov. SUPPLEMENTARY INFORMATION: I. Background II. Section-by-Section Analysis III. Regulatory Review and Procedural Requirements A. Review under Executive Orders 12866, 13563, and 14094 B. Review under Executive Order 12988 C. Review under the Regulatory Flexibility Act D. Review under the Paperwork Reduction Act E. Review under the National Environmental Policy Act F. Review under Executive Order 13132 G. Review Under Executive Order 13175 H. Review under the Unfunded Mandates Reform Act of 1995 I. Review under the Treasury and General Government Appropriations Act, 1999 J. Review under Executive Order 13211 K. Review under the Treasury and General Government Appropriations Act, 2001 IV. Public Participation V. Approval by the Office of the Secretary of Energy I. Background The purpose of this proposed rulemaking is to amend the Department’s Financial Assistance Regulations at 2 CFR part 910. Specifically, DOE is proposing to amend part 910 to prescribe responsibilities, requirements, and procedures for non-Federal entities to identify, evaluate, resolve, and report conflicts of interest, conflicts of commitment, and organizational conflicts of interest in Federal financial assistance applications and awards, as those terms are proposed to be defined in this notice of proposed rulemaking. The proposed provisions would implement Office of Management and Budget (OMB) guidance to Federal agencies regarding the establishment of conflict of interest (COI) policies for Federal awards by codifying existing DOE policy, consistent with National Security Presidential Memorandum 33 (NSPM-33).1 DOE is required to establish COI policies for Federal awards pursuant to 2 CFR 200.112, which also specifies that the non-Federal entity must disclose in writing any potential COI to the Federal awarding agency or pass-through entity in accordance with applicable Federal awarding agency policy. On December 20, 2021, DOE issued an interim COI policy2 that addresses COI and organizational conflicts of interest, which will be incorporated in and made enforceable through the Special Terms and Conditions for DOE financial assistance awards. The interim COI policy establishes standards that provide a reasonable expectation that the design, conduct, and reporting of projects wholly or in part funded under DOE financial assistance awards (e.g., a grant, cooperative agreement, or technology investment agreement) will be free from bias resulting from COI or conflict of commitment (COC).3 To minimize the implementation burden on non-Federal entities, the interim COI policy is largely aligned with the long-standing COI regulations established by the Public Health Service at 42 CFR part 50, subpart F, which are NSPM-33 established national security policy for U.S. Government-supported research and development (R&D). The purpose of NSPM-33 is to strengthen protections of U.S. Government-supported R&D against foreign government interference and misappropriation, while maintaining an open environment to foster research discoveries and innovation that benefit the United States and the world. NPSM-33 is available at https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-united-states-governmentsupported-research-development-national-security-policy/. See also, OMB guidance, Guidance for Implementing National Security Presidential Memorandum (NPM-33) on National Security Strategy for United States Government-Supported Research and Development, available at https://www.whitehouse.gov/wpcontent/uploads/2022/01/010422-NSPM-33-Implementation-Guidance.pdf. 2 Financial Assistance Letter No. 2022-02, Department of Energy Interim Conflict of Interest Policy Requirements for Financial Assistance. Available at https://www.energy.gov/sites/default/files/202112/Interim%20COI%20Policy%20FAL2022-02%20to%20SPEs.pdf. 3 In general, as proposed COC means a situation in which an individual accepts or incurs conflicting obligations, whether foreign or domestic, between or among multiple employers or other entities and may include conflicting commitments of time and effort, including obligations to dedicate time in excess of institutional or DOE policies or commitments. applicable to research and development entities that include R&D funded by Public Health Service grants or cooperative agreements. The interim COI policy currently remains in effect. The disclosure requirements proposed in this notice of proposed rulemaking would be established in proposed subpart C to 2 CFR part 910 (Subpart C). If made final, this proposed rule would apply to Federal financial assistance applications and awards, including applications and awards regarding research, development, demonstration, and deployment. The proposed requirements regarding COI, COC, and organizational conflicts of interest (OCI)4 would generally apply to non-Federal entities applying and receiving financial assistance awards from DOE as described in 2 CFR 910.122. DOE is proposing that Subpart C not be applicable to applicants to or recipients of financial assistance under the programs of the DOE Office of Indian Energy, given that office’s statutory mission to maximize the development and deployment of energy solutions for the benefit of American Indians and Alaska Natives; the unique sovereign status of Tribes; the practical limitations such regulations would present Tribes serving their communities, which in certain instances are small and remote; and consideration of traditional Tribal practices. DOE also proposes that the applicable DOE program office may tailor as appropriate the COI, COC, and OCI provisions for individuals applying for or receiving a DOE financial assistance award. DOE requests comment on the scope of the proposed regulations. DOE notes on April 22, 2024, the Office of Management and Budget (OMB) published a final rule that revises sections of the OMB Guidance for Grants and Agreements, and is effective beginning October 1, 2024. 4 An OCI means that because of relationships with a parent company, affiliate, or subsidiary organization, a nonFederal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization. 2 CFR 200.318(c)(2). 89 FR 30046. DOE will consider conforming changes to the regulations proposed in this notice of proposed rulemaking based on the finalized OMB guidance once effective, as appropriate. II. Section-by-Section Analysis DOE proposes amending Chapter 9 of Title 2 of the Code of Federal Regulations to add subpart C. Proposed subpart C provides the general requirement for applicants for and recipients of federal financial assistance from DOE to maintain a COI and a COC policy; definitions relevant to the COI and COC policy requirements; and for the disclosure of certain COI, COC, and OCI, by applicants and recipients. New subpart C would consist of §§ 910.200 through 910.270 and appendix A as set forth below: § 910.200 Proposed § 910.200 would establish definitions applicable to the proposed new subpart C. DOE is proposing to define conflict of commitment (COC), conflict of interest (COI), covered individual, financial interest, other support, principal investigator (PI), project, and significant financial interest. § 910.210 Proposed § 910.210 would establish the applicability of the COI and COC policy and reporting requirements proposed in new subpart C. In general, DOE is proposing the requirements would be applicable to non-Federal entities that are applicants to or recipients of a DOE Federal financial assistance award. § 910.220 Reserved. § 910.230 Proposed § 910.230 would require non-Federal entities that are applicants to or recipients of DOE Federal financial assistance to establish and maintain of COI and COC policies. DOE further proposes in § 910.230 the criteria that such polices would be required to meet and requirements regarding subrecipients. § 910.240 Proposed § 910.240 would establish reporting requirements regarding identified COI and COC, mitigation measures relevant to a COI or COC, and requirements to update reporting. § 910.250 Consistent with 2 CFR 200.318, proposed § 910.250 would establish requirements regarding non-Federal entities with a parent, affiliate, or subsidiary organization that is not a state government, local government, or Indian tribe, the non-Federal entity must maintain written standards of conduct covering organizational conflicts of interest (OCI) as that term is defined in 2 CFR 200.318(c)(2). DOE notes that in the context of the Federal Acquisition Regulations, the head of an agency or their designee may waive the organizational conflicts of interest requirement by determining that its application in a particular situation would not be in the Government’s interest. 48 CFR 9.503. Comment is requested on whether a similar provision should be applicable to the financial assistance requirements. § 910.260 Proposed § 910.260 would establish reporting requirements relevant to any potential or actual OCI to DOE. Proposed § 910.260 would establish the timing and content requires of such reports. § 910.270 Proposed § 910.270 would specify actions DOE may take if a non-Federal entity fails to disclose a COI or COC or fails to sufficiently manage or mitigate such a conflict. Proposed § 910.270 would also specify the remedies for failure to disclose an OCI. Appendix A Proposed appendix A would provide the certification statement that would be required for compliance with the requirements in proposed subpart C to 2 CFR part 910. III. Regulatory Review and Procedural Requirements A. Review under Executive Orders 12866,13563, and 14094 Executive Order (E.O.) 12866, “Regulatory Planning and Review,†as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,†and amended by E.O. 14094, “Modernizing Regulatory Review,†88 FR 21879 (April 11, 2023) requires agencies, to the extent permitted by law to: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fee or profit or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE has initially determined that this notice of proposed rulemaking (NOPR) is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits. Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions†to the Office of Information and Regulatory Affairs (OIRA) for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action†under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866. B. Review under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, "Civil Justice Reform," (61 FR 4729, February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the United States Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988. C. Review under the Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,†(67 FR 53461, August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel’s web site at www.energy.gov/gc/office-general-counsel. DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth below. The proposed rule would be applicable to non-federal entities that are applicants to or recipients of financial assistance awards from the Department. Non-Federal entities, including small entities, are currently subject to the Department’s interim policies implementing the conflicts provisions at 2 CFR 200.112 and the requirements regarding OCI at 2 CFR 200.318(c). If made final, this rule would codify the existing policies applicable to financial assistance awards from the Department. Additionally, as proposed, the applicable DOE program office may tailor as appropriate the COI, COC, and OCI provisions for individuals that are applicants to or recipients of a DOE financial assistance award. Accordingly, DOE certifies that this rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required. DOE will transmit a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b). D. Review under the Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR 1320, Appendix A.1) (PRA), DOE reviewed this proposed rule and determined that there are no new collections of information contained therein. DOE’s procurement reporting and recordkeeping burdens have been approved under OMB Control No. 1910-4100. E. Review under the National Environmental Policy Act. DOE has preliminarily determined that promulgation of this proposed rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE’s regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA). Specifically, DOE has preliminarily determined that this proposed rule is covered under the categorical exclusion found in DOE’s NEPA regulations at paragraph A6 of appendix A to subpart D, 10 CFR part 1021. Categorical exclusion A6 applies to rulemakings that are strictly procedural. Additionally, DOE has preliminarily determined that this proposed rule is covered under the Categorical Exclusion found in DOE's NEPA regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required. F. Review under Executive Order 13132 Executive Order 13132, “Federalism†(64 FR 43255, August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive order requires agencies to have an accountability process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined the proposed rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. G. Review Under Executive Order 13175 Under Executive Order 13175 (65 FR 67249, November 6, 2000) on “Consultation and Coordination with Indian Tribal Governments,†DOE may not issue a discretionary rule that has “Tribal†implications and imposes substantial direct compliance costs on Indian Tribal governments. DOE has determined that the final rule would not have such effects and concludes that Executive Order 13175 does not apply to this proposed rulemaking. H. Review under the Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,†and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE’s policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. This proposed rule does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. As a result, the analytical requirements of UMRA do not apply. I. Review under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Public Law 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking or policy that may affect family well-being. This proposed rulemaking will have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. J. Review under Executive Order 13211 Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, May 22, 2001), requires Federal agencies to prepare and submit to OIRA, of the Office of Management and Budget (OMB), a Statement of Energy Effects for any proposed significant energy action. A “significant energy action†is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order, (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution and use. This proposed rule is not a significant energy action. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Review under the Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB’s guidelines were published at 67 FR 8452 (February 22, 2002), and DOE’s guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. VI. Public Participation DOE will accept comments regarding this proposed rule no later than the date provided in the DATES section at the beginning of this document. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document. Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment. However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments. Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBIâ€)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section. DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment. Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments. Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No faxes will be accepted. Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author. Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time. Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked “confidential†including all the information believed to be confidential, and one copy of the document marked “non-confidential†with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination. It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure). V. Approval by the Office of the Secretary of Energy The Secretary of Energy has approved publication of this notice of proposed rulemaking. List of Subjects in 2 CFR Part 910 Accounting, Administrative practice and procedure, Grant programs, Reporting and recordkeeping requirements. Signing Authority This document of the Department of Energy was signed on May 30, 2024, by Berta Schreiber, Director, Office of Acquisition Management and Senior Procurement Executive and William J. Quigley, Deputy Associate Administrator for Office of Partnership and Acquisition Services and Senior Procurement Executive, National Nuclear Security Administration, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE/NNSA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Signed in Washington, D.C. on June 13, 2024. Treena V. Garrett, Federal Register Liaison Officer, U.S. Department of Energy. For reasons set out in the preamble, DOE proposes to amend chapter 9 of Title 2 of the Code of Federal Regulations as set forth below: PART 910—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS 1. The authority citation for part 910 continues to read as follows: Authority: 42 U.S.C. 7101, et seq.; 31 U.S.C. 6301-6308; 50 U.S.C. 2401 et seq.; 2 CFR part 200. 2. Add subpart C to part 910 to read as follows: Subpart C – Conflicts of Interest, Conflicts of Commitment, Organizational Conflicts of Interest, and Other Matters of Concern Sec. 910.200 910.210 910.220 910.230 910.240 910.250 910.260 910.270 Definitions. Applicability. Reserved. Required conflict of interest (COI) and conflict of commitment (COC) policies. Reporting conflicts of interest (COI) and conflicts of commitment (COC). Organizational conflicts. Reporting organizational conflicts of interest (OCI). Remedies, penalties, and enforcement. Appendix A to Subpart C of Part 910--Disclosure Certification Statement § 910.200 Definitions. For the purposes of this subpart, the following definitions are applicable: Conflict of commitment (COC) means a situation in which an individual accepts or incurs conflicting obligations, whether foreign or domestic, between or among multiple employers or other entities. This may include conflicting commitments of time and effort, including obligations to dedicate time in excess of institutional or DOE policies or commitments. Other types of conflicting obligations, including but not limited to, obligations to improperly share information with, or to withhold information from, an employer or DOE, can also threaten research, technology or economic security and integrity. Examples of situations that may give rise to conflicts of commitment include, but are not limited to, current or pending employment; positions, appointments, or affiliations such as titled academic, professional, or institutional appointments, whether remuneration is received and whether full-time, part-time, or voluntary (including adjunct, visiting, or honorary positions); and participation in or applications to foreign government-sponsored talent recruitment or similar programs. Conflict of interest (COI) means a situation in which a covered individual or the spouse or a child of the covered individual has a significant financial interest or financial relationship, whether with a domestic or foreign entity, that could directly and significantly affect the design, conduct, reporting or funding of a project or other Federal financial assistance award-related activities. Examples of situations that may give rise to a COI include, but are not limited to, holding an executive position, director position, or equity over a certain dollar amount in a company that stands to benefit from Federal financial assistance award-related activities, receiving financial compensation in the form of consulting payments or payment for services from a company that stands to benefit from Federal financial assistance award-related activities, or intellectual property rights or royalties from such rights whose value may be affected by the outcome of Federal financial assistance award-related activities. Covered individual means any individual, regardless of title or position, who: (1) Contributes in a substantive, meaningful way to the development or execution (e.g., purpose, design, conduct, or reporting) of a project funded by DOE or proposed for funding by DOE; and, (2) Is designated as a covered individual by DOE. DOE designates as covered individuals any principal investigator (PI), project director (PD), co-principal investigator (Co-PI), coproject director (Co-PD), or project manager; and any individual (including an individual at the masters or baccalaureate level) that contributes in a substantive, meaningful way to the development or execution of a subject project that is listed by the non-Federal entity in the application for Federal financial assistance, approved budget, progress report, or any other report submitted to DOE by the non-Federal entity regarding the subject project. This list of designated covered individuals may be expanded if specified in the applicable funding opportunity announcement and/or terms and conditions of the Federal financial assistance award, to include individuals on the project team as covered individuals, including up to any person who participates in the purpose, design, conduct, or reporting of a project funded by DOE or proposed for funding by DOE, including, for example, collaborators, consultants, graduate (master’s or PhD) students, and postdoctoral associates. DOE means the U.S. Department of Energy and the National Nuclear Security Administration (NNSA). Financial interest means anything of monetary value, whether or not the value is readily ascertainable. Other support means all resources made available to a covered individual in support of and/or related to all of their professional research (including basic and fundamental research), development, demonstration, and/or deployment efforts, including resources provided directly to the covered individual rather than through the research organization, and regardless of whether or not they have monetary value (e.g., even if the support received is only in-kind, such as office/laboratory space, equipment, supplies, or employees). This includes resource and/or financial support from all foreign and domestic entities, including but not limited to, gifts provided with terms or conditions, financial support for laboratory personnel, and participation of student and visiting researchers and visiting scholars supported by other sources of funding. Principal investigator (PI) means an individual identified to direct a project by an applicant to or recipient of a DOE Federal financial assistance award. Project means the interdependent activities funded wholly or in part under the DOE Federal financial assistance award. A project has a defined start and end point with objectives described in an application or in an approved scope that, when attained, signify completion and achievement of a specific goal, and creation of a unique product, service, or result. For Federal financial assistance awards that include recipient cost share as part of the approved budget, activities funded with that recipient cost share are included. Significant financial interest means: (1) A financial interest consisting of one or more of the following interests of the covered individual (and those of the covered individual's spouse and dependent children) that reasonably appears to be related to the covered individual’s non-Federal entity responsibilities: (i) With regard to any foreign or domestic publicly traded entity, a significant financial interest exists if the value of any remuneration received from the entity in the twelve months preceding the disclosure and the value of any equity interest in the entity as of the date of disclosure, when aggregated, exceeds $5,000. For purposes of this definition, remuneration includes salary and any payment for services not otherwise identified as salary (e.g., consulting fees, honoraria, paid authorship); equity interest includes any stock, stock option, or other ownership interest, as determined through reference to public prices or other reasonable measures of fair market value; (ii) With regard to any foreign or domestic non-publicly traded entity, a significant financial interest exists if the value of any remuneration, not otherwise disclosed as current, pending, or other support, received from the entity in the twelve months preceding the disclosure, when aggregated, exceeds $5,000, or when the covered individual (or the covered individual’s spouse or dependent children) holds any equity interest (e.g., stock, stock option, or other ownership interest); (iii) Intellectual property rights and interests (e.g., patents, copyrights), upon receipt of income related to such rights and interests. (2) Any reimbursed or sponsored travel (i.e., that which is paid on behalf of the covered individual and not reimbursed to the covered individual so that the exact monetary value may not be readily available) related to their institutional responsibilities that is not otherwise disclosed in current and pending or other support disclosures, but does not include travel that is reimbursed or sponsored by a Federal, state, or local government agency of the United States; a domestic Institution of Higher Education; or a domestic research institute that is affiliated with a domestic Institution of Higher Education. (3) The term significant financial interest does not include the following types of financial interests: salary, royalties, or other remuneration paid by the non-Federal entity to the covered individual if the covered individual is currently employed or otherwise appointed by the non- Federal entity, including intellectual property rights assigned to the non-Federal entity and agreements to share in royalties related to such rights; any ownership interest in the non-Federal entity held by the covered individual , if the non-Federal entity is a commercial or for-profit organization; income from investment vehicles, such as mutual funds and retirement accounts, as long as the covered individual does not directly control the investment decisions made in these vehicles; income from seminars, lectures, or teaching engagements sponsored by a Federal, state, or local government agency of the United States, a domestic Institution of Higher Education, or a domestic research institute that is affiliated with a domestic Institution of Higher Education; or income from service on advisory committees or review panels for a Federal, state, or local government agency of the United States, a domestic Institution of Higher Education, or a domestic research institute that is affiliated with a domestic Institution of Higher Education. § 910.210 Applicability. (a) This subpart applies to any non-Federal entity that is an applicant to or recipient of a DOE Federal financial assistance award on or after [Date 30 days after date of publication of final rule], including any covered individual who plans to participate in or is participating in the project funded wholly or in part under the DOE Federal financial assistance award, and each nonFederal entity subrecipient under the Federal financial assistance award, subject to the following exceptions: (1) This subpart does not apply to DOE Office of Indian Energy applications and Federal financial assistance awards. (2) For an individual that is an applicant to or recipient of a DOE Federal financial assistance award the requirements of this subpart may be tailored to the extent determined appropriate by the applicable DOE program office. (b) [Reserved]. § 910.220 Reserved. § 910.230 Required conflict of interest (COI) and conflict of commitment (COC) policies. (a) Any non-Federal entity that is an applicant to or recipient of a DOE Federal financial assistance award must maintain a written and enforced policy addressing actual, apparent, and potential COI and COC, both foreign and domestic. The non-Federal entity must make its written policy available within five business days following any request for the policy. (b) The policy required under paragraph(a) of this section must: (1) Designate a non-Federal entity official(s) to solicit and review COI and COC disclosures from each covered individual who is planning to participate in, or is participating in, the project funded under a DOE Federal financial assistance award; (2) Require review by the designated official(s) of all covered individuals’ disclosures to determine whether an actual, apparent, or potential COI or COC exists; and, if so, require the designated official(s) determine the actions that have been and shall be taken to eliminate or, where appropriate, manage or reduce the conflict. Examples of conditions or restrictions that a recipient or subrecipient might impose to manage, reduce, or eliminate a conflict include, but are not limited to: (i) Public disclosure of the conflict (e.g., when presenting or publishing the project); (ii) For projects involving human subjects, disclosure of the conflict directly to participants; (iii) Appointment of an independent monitor or oversight committee capable of taking measures to protect the purpose, design, conduct, and reporting of the project against bias resulting from the conflict; (iv) Modification of the project plan; (v) Change of personnel or personnel responsibilities, or disqualification of personnel from participation in all or a portion of the project; (vi) Reduction or elimination of the financial interest (e.g., sale of an equity interest) or commitment; or (vii) Severance of relationship(s) that create the conflict. (3) Ensure that covered individuals have provided all required disclosures to the non- Federal entity no later than the time an application is submitted to DOE. In the event a nonFederal entity seeks to add a covered individual after the time of application, the non-Federal entity must require the covered individual make such disclosures prior to participating in a project funded under a DOE Federal financial assistance award. (4) Require each covered individual who is participating in the DOE Federal financial assistance award update those disclosures on an annual basis and as soon as any new actual, apparent, or potential COI or COC arises. (5) Require each disclosure be signed and dated by the covered individual and include the certification statement in appendix A of this subpart; (6) Require each covered individual to complete COI and COC training prior to engaging in projects funded under a DOE Federal financial assistance award and complete refresher training least every two years. The training must cover the non-Federal entity's COI and COC policy and the covered individual’s responsibilities regarding disclosures. The non-Federal entity must require covered individual to complete COI and COC training within 30 days of any of the following circumstances: (i) The non-Federal entity revises its COI and COC policies or procedures in any manner that affects the responsibilities of a covered individual; (ii) A covered individual is new to a non-Federal entity; or (iii) A non-Federal entity finds that a covered individual is not in compliance with the non- Federal entity's COI and COC policy or applicable management plan. (7) With regard to reimbursed or sponsored travel, the non-Federal entity's COI and COC policy must require, at a minimum, reporting the purpose of the trip, the identity of the sponsor/organizer, the destination, and the duration. In accordance with the non-Federal entity's policy, the non-Federal entity official(s) will determine if further information is needed, including a determination or disclosure of monetary value, in order to determine whether the travel constitutes a COI or COC with the project funded under the DOE Federal financial assistance award; and (8) Include adequate enforcement mechanisms and provide for sanctions where appropriate. (c) Any non-Federal entity that receives a DOE Federal financial assistance award must ensure that subrecipients, if any, follow the requirements of this subpart by: (1) Incorporating as part of a written agreement with the subrecipient terms that establish either the COI and COC policy of the recipient or that of the subrecipient will apply to the subrecipient's covered individuals. (2) If the subrecipient's covered individuals must comply with the subrecipient's COI and COC policy, the subrecipient shall certify as part of the agreement referenced above that its policy complies with this subpart. If the subrecipient cannot provide such certification, the agreement shall state that subrecipient’s covered individuals are subject to the COI and COC policy of the recipient; (3) Additionally, if the subrecipient's covered individuals must comply with the subrecipient's COI and COC policy, the agreement referenced above shall specify time period(s) for the subrecipient to report all identified financial COI and COC to the recipient. Such time period(s) shall be sufficient to enable the recipient to provide timely COI/COC reports, as necessary, to DOE, as required by this subpart; (4) Alternatively, if the subrecipient's covered individuals must comply with the recipient’s COI and COC policy, the agreement referenced above shall specify time period(s) for the subrecipient to submit all covered individual’s disclosures to the recipient. Such time period(s) shall be sufficient to enable the recipient to comply timely with its review, management, and reporting obligations under this subpart. § 910.240 Reporting conflicts of interest (COI) and conflicts of commitment (COC). (a) Consistent with title 2 of the Code of Federal Regulation (CFR) 200.112, Conflict of interest, a non-Federal entity that is an applicant to or recipient of DOE financial assistance must disclose to DOE in writing any actual, apparent, or potential COI or COC, including any actual, apparent, or potential COI or COC reported to the recipient by a subrecipient, if such conflict cannot be eliminated or appropriately managed or reduced in accordance with the entity’s policy. In addition, such entity must disclose to DOE in writing any actual, apparent, or potential COI or COC, including any actual, apparent, or potential COI or COC reported to the recipient by a subrecipient, involving any foreign governments, their instrumentalities, or any other entities owned, funded, or otherwise controlled by a foreign government, as well as any measures the entity has taken to eliminate or, where appropriate, manage or reduce the COI or COC. (1) For all conflicts that require disclosure to DOE: (i) A non-Federal entity applying for DOE funding must clearly and explicitly disclose such conflict(s) in the application. (ii) In the event a non-Federal entity seeks to add a covered individual after the time of application, the non-Federal entity must clearly and explicitly disclose such conflict(s) in writing to DOE prior to the individual participating in the project. (2) If specified in the applicable funding opportunity announcement and/or terms and conditions of the Federal financial assistance award, a DOE program office may require the nonFederal entity disclose to DOE in writing all covered individuals’ COIs and COCs, including those COIs and COCs determined by the non-Federal entity to be appropriately managed or reduced. (b) DOE may require the non-Federal entity to provide associated disclosures, supporting documentation to demonstrate how the COI or COC was managed or reduced; and sufficient information to enable DOE to understand the nature and extent of the COI or COC, and to assess whether the actions are sufficient to ensure the integrity of the DOE-supported project and to protect the government’s interests. (c) For any COI or COC previously reported by the non-Federal entity regarding an ongoing project funded under a DOE Federal financial assistance award, the non-Federal entity must provide DOE with an annual COI/COC report that addresses the status of the COI or COC and, if applicable, any changes to the management plan for the duration of the DOE Federal financial assistance award. The annual COI/COC report must specify whether the conflict is still being managed or if it remains unmanaged/unmanageable. Alternatively, the annual COI/COC report must explain why the conflict no longer exists. The non-Federal entity must provide annual COI/COC reports to DOE for the duration of the project period (including extensions with or without funds) in the time and manner required by term and condition of the Federal financial assistance award. (d) In addition to the annual COI/COC report, DOE may require a non-Federal entity to routinely, or upon request, submit all or some covered individuals’ disclosures. Circumstances when DOE may require a non-Federal entity to submit all or some of such covered individual disclosures include but are not limited to: (1) As part of monitoring the non-Federal entity’s compliance with this subpart; (2) Bankruptcy of the non-Federal entity; (3) Other legal winding down of the non-Federal entity; (4) Acquisition of the non-Federal entity by a foreign entity, where “acquisition†includes a foreign entity obtaining a controlling interest in the non-Federal entity; or (5) As otherwise set forth in 2 CFR part 200 and this part. (e) If a non-Federal entity becomes aware that a covered individual failed to comply with the non-Federal entity's COI and COC policy or a management plan, the non-Federal entity must promptly notify DOE in writing of the failure to comply and of the corrective action taken or to be taken. DOE will evaluate the situation and, as necessary, take appropriate action, which may include referring the matter to the non-Federal entity for further corrective action consistent with non-Federal entity’s established COI and COC policies, DOE directing the non-Federal entity to take specific mitigation measures, or termination of the Federal financial assistance award. § 910.250 Organizational conflicts. (a) Consistent with title 2 of the Code of Federal Regulation (CFR) 200.318, if a non- Federal entity has a parent, affiliate, or subsidiary organization that is not a state government, local government, or Indian tribe, the non-Federal entity must maintain written standards of conduct covering organizational conflicts of interest (OCI) as that term is defined in 2 CFR 200.318(c)(2). (b) If the effects of a potential or actual OCI cannot be avoided, eliminated, or mitigated, the procurement or other transaction anticipated by the non- Federal entity must not be made using DOE or cost share funds. § 910.260 Reporting organizational conflicts of interest (OCI). (a) The non-Federal entity must disclose in writing any potential or actual OCI to DOE within five business days of learning of the conflict. (1) The non-Federal entity must provide the disclosure to DOE in an application for financial assistance and prior to engaging in a procurement or transaction using DOE funds with a parent, affiliate, or subsidiary organization that is not a state government, local government, or Indian tribe. (2) The disclosure must include, at a minimum, the following: (i) The name, address, and website (as applicable) of the entity that presents a potential or actual OCI; (ii) The relationship between the non-Federal entity and the entity at issue; (iii) The nature of the anticipated procurement or other transaction with the parent, affiliate, or subsidiary organization; the anticipated value of the procurement or other transaction; and the basis for making the procurement or other transaction with the parent, affiliate, or subsidiary organization; (vi) and The basis for the non-Federal entity’s determination regarding the existence of an OCI; (v) How the non-Federal entity will avoid, eliminate, or mitigate the OCI. § 920.270 Remedies, penalties, and enforcement. (a)(1) If a non-Federal entity fails to disclose a conflict of interest (COI) or conflict of commitment (COC) as required under this subpart, or fails to sufficiently manage or mitigate a COI or COC to ensure the integrity of the DOE-supported project or to protect the government’s interests, DOE may: (i) Require the non-Federal entity take action to eliminate or mitigate the conflict to a risk level acceptable to DOE. In the event the non-Federal entity does not eliminate or mitigate the conflict to a risk level acceptable to DOE, DOE may determine the Federal financial assistance award no longer effectuates the program goals or agency priorities and terminate the Federal financial assistance award; (ii) Determine the circumstances disqualify an entity or individual from participating in all or a portion of a Federal financial assistance award; or (iii) Reject an application. (2) DOE may inquire, at any time before, during, or after a Federal financial assistance award, into any covered individual’s disclosures and the non-Federal entity's review (including any retrospective review) of and response to such disclosure, regardless of whether the disclosure resulted in the non-Federal entity's determination of a COI or COC. A non-Federal entity is required to submit or permit on-site review of all records pertinent to compliance with this subpart. To the extent permitted by law, DOE will maintain the confidentiality of all records of financial interests. Based on its review of records or other information that may be available, DOE may determine that a particular COI or COC will bias the objectivity of or adversely impact the project funded under the DOE Federal financial assistance award to such an extent that further corrective action is needed or that the non-Federal entity has not managed the COI or COC in accordance with this subpart. DOE may determine that the imposition of specific award conditions under 2 CFR 200.208 is necessary. DOE may also take one or more the actions specified under 2 CFR 200.339, as appropriate in such circumstances. (b) If a non-Federal entity fails to disclose an OCI to DOE prior to engaging in a procurement or transaction using DOE funds with a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe, the costs of such procurement or transaction may be disallowed. If a non-Federal entity fails to disclose an OCI to DOE that is not avoided, eliminated, or mitigated or fails to avoid, eliminate, or mitigate a disclosed OCI, prior to engaging in a procurement or transaction using DOE funds with a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe, DOE may determine that imposition of specific award conditions under 2 CFR 200.208 is necessary. DOE may also take one or more actions specified under 2 CFR 200.339, as appropriate in the circumstances. (c) Any false, fictitious, or fraudulent information, or the omission of any material fact, on a disclosure, report, or other record required under this subpart may be subject to criminal, civil, or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code Title 18, Sections 287 and 1001; and Title 31, 3729-3733 and 3801-3812). (d) If fraud, misrepresentation, or related misconduct is suspected in relation to any disclosure submitted to DOE, then the cognizant contracting officer and/or program official should coordinate with appropriate counsel and thereafter, as appropriate, refer the matter to the DOE Office of Inspector General (OIG). (e) If a covered individual knowingly fails to disclose required information, DOE may take one or more of the following enforcement or other actions: (1) Reject an application; (2) Suspend or terminate a Federal financial assistance award; (3) Temporarily or permanently discontinue or de-obligate any or all funding for the covered individual or non-Federal entity; (4) Refer recipients for consideration of suspension or debarment proceedings; (5) Refer the failure to disclose to the DOE OIG for further investigation or to Federal law enforcement authorities to determine whether any criminal or civil laws were violated; (6) Report the entity in the Federal Awardee Performance and Integrity Information System (FAPIIS) to alert other Federal agencies to the noncompliance; (7) Take one or more of the actions described in 2 CFR 200.339, Remedies for noncompliance; or (8) Take such other actions against the covered individual or non-Federal entity as authorized under applicable law or regulations. Appendix A to Subpart C of Part 910--Disclosure Certification Statement All disclosures required under this subpart must include the following certification statement: “I understand that this Disclosure is required to obtain funding from the U.S. Government. I, [Full Name and Title], certify to the best of my knowledge and belief that the information contained in this Disclosure Statement is true, complete, and accurate. I understand that any false, fictitious, or fraudulent information, misrepresentations, half-truths, or omissions of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims, or otherwise. (18 U.S.C. 287, 1001, and 1031, and 31 U.S.C. 3729-3733 and 3801-3812). I further understand and agree that: (1) The statements and representations made herein are material to the U.S. Government’s funding decision, and (2) I have a responsibility to update the disclosures during the period of performance of the Federal financial assistance award should circumstances change which impact the responses provided above.†[FR Doc. 2024-13392 Filed: 6/17/2024 8:45 am; Publication Date: 6/18/2024]