Proposed Rule2024-13392
Financial Assistance Regulations-Conflict of Interest and Conflict of Commitment Policy Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 18, 2024
Issuing agencies
Energy Department
Abstract
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.
Full Text
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[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Proposed Rules]
[Pages 51460-51468]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13392]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 118 / Tuesday, June 18, 2024 /
Proposed Rules
[[Page 51460]]
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.
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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 August 19, 2024.
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: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments.
Email to: <a href="/cdn-cgi/l/email-protection#e4a7abad9691888189858f8d8a83a48c95ca808b81ca838b92"><span class="__cf_email__" data-cfemail="2d6e62645f584148404c4644434a6d455c03494248034a425b">[email protected]</span></a>: 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 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.
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
<a href="http://www.regulations.gov">www.regulations.gov</a> and can be located by the docket number provided in
the heading of this document. All documents in the docket are listed in
the <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="/cdn-cgi/l/email-protection#a3e8d1dad0d7c2cf8df3c2c4c6e3cbd28dc7ccc68dc4ccd5"><span class="__cf_email__" data-cfemail="e7ac959e9493868bc9b7868082a78f96c9838882c9808891">[email protected]</span></a>.
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\
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\1\ 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 <a href="https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-united-states-government-supported-research-development-national-security-policy/">https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-united-states-government-supported-research-development-national-security-policy/</a>. 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 <a href="https://www.whitehouse.gov/wp-content/uploads/2022/01/010422-NSPM-33-Implementation-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/01/010422-NSPM-33-Implementation-Guidance.pdf</a>.
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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 \2\ 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
[[Page 51461]]
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 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.
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\2\ Financial Assistance Letter No. 2022-02, Department of
Energy Interim Conflict of Interest Policy Requirements for
Financial Assistance. Available at <a href="https://www.energy.gov/sites/default/files/2021-12/Interim%20COI%20Policy%20FAL2022-02%20to%20SPEs.pdf">https://www.energy.gov/sites/default/files/2021-12/Interim%20COI%20Policy%20FAL2022-02%20to%20SPEs.pdf</a>.
\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.
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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.
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\4\ 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).
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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. 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 Sec. Sec. 910.200 through 910.270 and appendix A as
set forth below:
Sec. 910.200
Proposed Sec. 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.
Sec. 910.210
Proposed Sec. 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.
Sec. 910.220
Reserved.
Sec. 910.230
Proposed Sec. 910.230 would require non-Federal entities that are
applicants to or recipients of DOE Federal financial assistance to
establish and maintain COI and COC policies. DOE further proposes in
Sec. 910.230 the criteria that such policies would be required to meet
and requirements regarding subrecipients.
Sec. 910.240
Proposed Sec. 910.240 would establish reporting requirements
regarding identified COI and COC, mitigation measures relevant to a COI
or COC, and requirements to update reporting.
Sec. 910.250
Consistent with 2 CFR 200.318, proposed Sec. 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.
Sec. 910.260
Proposed Sec. 910.260 would establish reporting requirements
relevant to any potential or actual OCI to DOE. Proposed Sec. 910.260
would establish the timing and content requires of such reports.
Sec. 910.270
Proposed Sec. 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 Sec. 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
[[Page 51462]]
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
website at <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>.
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.
[[Page 51463]]
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
<a href="https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf">https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf</a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> 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.
[[Page 51464]]
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 <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (``CBI'')). Comments submitted
through <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>
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 <a href="http://www.regulations.gov">www.regulations.gov</a>. 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, DC, 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
0
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.
0
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 Definitions.
910.210 Applicability.
910.220 Reserved.
910.230 Required conflict of interest (COI) and conflict of
commitment (COC) policies.
910.240 Reporting conflicts of interest (COI) and conflicts of
commitment (COC).
910.250 Organizational conflicts.
910.260 Reporting organizational conflicts of interest (OCI).
910.270 Remedies, penalties, and enforcement.
Appendix A to Subpart C of Part 910--Disclosure Certification
Statement
Sec. 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
[[Page 51465]]
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), co- project 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 Ph.D.) 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
[[Page 51466]]
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.
Sec. 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 non-Federal 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].
Sec. 910.220 Reserved.
Sec. 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 non- Federal 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
[[Page 51467]]
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.
Sec. 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 non- Federal 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.
Sec. 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.
Sec. 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) The basis for the non-Federal entity's determination regarding
the existence of an OCI; and
(v) How the non-Federal entity will avoid, eliminate, or mitigate
the OCI.
Sec. 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
[[Page 51468]]
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 6-17-24; 8:45 am]
BILLING CODE 6450-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.