Financial Assistance Regulations-Conflict of Interest and Conflict of Commitment Policy Requirements

DEPARTMENT OF ENERGY <CFR>2 CFR Part 910</CFR> <DEPDOC>[DOE-HQ-2024-0029]</DEPDOC> <RIN>RIN 1991-AC18</RIN> <SUBJECT>Financial Assistance Regulations—Conflict of Interest and Conflict of Commitment Policy Requirements</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Energy. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments on this proposed rule must be received on or before August 19, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by <E T="03">Financial Assistance Regulations—Conflict of Interest and Conflict of Commitment Policy Requirements</E> and <E T="03">RIN 1991-AC18,</E> by any of the following methods: <E T="03">Federal eRulemaking Portal: www.regulations.gov.</E> Follow the instructions for submitting comments. <E T="03">Email to:</E> <E T="03">COIrulemaking@hq.doe.gov:</E> Include Financial Assistance Regulations—Conflict of Interest Policy and RIN 1991-AC18 in the subject line of the message. <E T="03">Postal mail to:</E> 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 email are encouraged. No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section IV of this document. <E T="03">Docket:</E> The docket for this activity, which includes <E T="04">Federal Register</E> notices, comments, public meeting transcripts, and other supporting documents/materials, is available for review at <E T="03">www.regulations.gov</E> and can be located by the docket number provided in the heading of this document. All documents in the docket are listed in the <E T="03">www.regulations.gov</E> index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ms. Krystal Paige, U.S. Department of Energy, Office of Acquisition Management, at (240) 404-8294 or by email at <E T="03">Krystal.Page@hq.doe.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Section-by-Section Analysis</FP> <FP SOURCE="FP-2">III. Regulatory Review and Procedural Requirements</FP> <FP SOURCE="FP1-2">A. Review Under Executive Orders 12866, 13563, and 14094</FP> <FP SOURCE="FP1-2">B. Review Under Executive Order 12988</FP> <FP SOURCE="FP1-2">C. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">D. Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">E. Review Under the National Environmental Policy Act</FP> <FP SOURCE="FP1-2">F. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">G. Review Under Executive Order 13175</FP> <FP SOURCE="FP1-2">H. Review Under the Unfunded Mandates Reform Act of 1995</FP> <FP SOURCE="FP1-2">I. Review Under the Treasury and General Government Appropriations Act, 1999</FP> <FP SOURCE="FP1-2">J. Review Under Executive Order 13211</FP> <FP SOURCE="FP1-2">K. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP-2">IV. Public Participation</FP> <FP SOURCE="FP-2">V. Approval by the Office of the Secretary of Energy</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> 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). <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  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 <E T="03">https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-united-states-government-supported-research-development-national-security-policy/.</E> See also, OMB guidance, <E T="03">Guidance for Implementing National Security Presidential Memorandum (NPM-33) on National Security Strategy for United States Government-Supported Research and Development,</E> available at <E T="03">https://www.whitehouse.gov/wp-content/uploads/2022/01/010422-NSPM-33-Implementation-Guidance.pdf.</E> </FTNT> 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 policy  <SU>2</SU> <FTREF/> 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 T="03">e.g.,</E> a grant, cooperative agreement, or technology investment agreement) will be free from bias resulting from COI or conflict of commitment (COC). <SU>3</SU> <FTREF/> 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 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. <FTNT> <SU>2</SU>  Financial Assistance Letter No. 2022-02, <E T="03">Department of Energy Interim Conflict of Interest Policy Requirements for Financial Assistance.</E> Available at <E T="03">https://www.energy.gov/sites/default/files/2021-12/Interim%20COI%20Policy%20FAL2022-02%20to%20SPEs.pdf.</E> </FTNT> <FTNT> <SU>3</SU>  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. </FTNT> 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)  <SU>4</SU> <FTREF/> 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. <FTNT> <SU>4</SU>  An OCI means that because of relationships with a parent company, affiliate, or subsidiary organization, a non- Federal 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). </FTNT> DOE requests comment on the scope of the proposed regulations. DOE notes on April 22, 2024, the Office of Management and Budget (OMB) publis ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 65k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━