Conflict of Interest Policy for Recipients of NASA Financial Assistance Awards
| Citation | 88 FR 60243 |
| Published date | 31 August 2023 |
| Record Number | 2023-18802 |
| Court | National Aeronautics And Space Administration |
| Section | Notices |
Federal Register, Volume 88 Issue 168 (Thursday, August 31, 2023)
[Federal Register Volume 88, Number 168 (Thursday, August 31, 2023)]
[Notices]
[Pages 60243-60245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18802]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
[NOTICE: 23-091]
Conflict of Interest Policy for Recipients of NASA Financial
Assistance Awards
AGENCY: National Aeronautics and Space Administration
ACTION: Final notice of a new NASA policy and term and condition
regarding conflict of interest disclosures for grant and cooperative
agreement recipients.
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SUMMARY: The National Aeronautics and Space Administration (NASA) is
publishing, in final form, a new policy and term and condition
regarding conflict of interest disclosures. The final policy can be
found in Grant Information Circular (GIC) 23-07. NASA's intention to
develop and implement this new policy and term and condition was
specified in the Federal Register of January 30, 2023.
FOR FURTHER INFORMATION CONTACT: For any questions, comments, or
concerns regarding this policy, please contact Christopher Murguia at
[email protected] or 202-909-5918.
SUPPLEMENTARY INFORMATION:
Background
In December 2020, the U.S. Government Accountability Office (GAO)
published report GAO-21-130, Federal Research: Agencies Need to Enhance
Policies to Address Foreign Influence. This report included two
recommendations for NASA that pertained to (1) updating NASA's conflict
of interest policy to include a definition of non-financial conflicts,
such as conflicts of commitment, and (2) documenting procedures, roles,
and responsibilities for addressing and enforcing failures to disclose
required information. In response to GAO-21-130, NASA published a
proposed conflict of interest and conflict of commitment policy in the
Federal Register in January 2023 (88 FR 5930, pages 5930-5932, January
30, 2023). After reviewing public comments and feedback, NASA has
revised the proposed policy to only address financial conflicts of
interest. All references to conflicts of commitment in the January 2023
draft policy have been removed.
The revised policy is designed to standardize NASA's conflict to
interest disclosure requirements with those of other Federal research
funding agencies. In summary, the policy requires NASA grant and
cooperative agreement recipients to maintain and enforce a conflict of
interest policy that requires the disclosure of significant financial
interests to an authorized official prior to application submission.
Prior to the expenditure of grant or cooperative agreement funds, the
institution shall review disclosed significant financial interests,
determine if a conflict of interest exits, and determine what
conditions or restrictions, if any, should be imposed to manage,
reduce, or eliminate such conflict of interest. Institutions shall
notify NASA of any conflict of interest that cannot be managed,
reduced, or eliminated in accordance with the institution's policy.
Public Comments Discussion
In response to NASA's request for public comment, the Agency
received seven letters containing multiple comments from colleges and
universities, for-profit entities, and other non-profit organizations.
All comments were carefully reviewed and considered prior to finalizing
the policy.
NASA received several comments pertaining to the lack of
consistency between the Agency's proposed conflict of interest and
conflict of commitment policy and other agencies' conflict of interest
policies. Commenters stated that this lack of consistency could result
in award recipients having to adopt unique processes, tools, and
training to address unique requirements in NASA's proposed policy.
Response: NASA recognizes the inconsistencies between the proposed
policy and that of other Federal research agencies and the confusion
that those inconsistencies may cause. As such, NASA has aligned its
conflict of interest policy with those of other Federal research
agencies to the greatest extent practicable.
Several comments pertained to the conflation of conflicts of
interest and conflicts of commitment in NASA's proposed policy.
Conflicts of interest and commitment affect research in different ways
and, therefore, actions taken to address conflicts of interest are
different than those taken to address conflicts of commitment. As such,
commenters recommended that NASA address conflicts of interest via a
standalone policy similar to other agencies' financial conflicts of
interest policies and address conflicts of commitment via biographical
sketch and current and pending support disclosures. Response: NASA
recognizes that conflicts of interest and commitment affect research
and are addressed in different ways. Therefore, NASA has removed all
references to conflicts of commitment in its policy so as not to
conflate the two concepts.
Some comments pertained to the definitions of ``conflict of
interest'', ``conflict of commitment'', and ``covered individual'' in
the proposed policy. Comments stated that the definitions were vague
and inconsistent with terminology and definitions used by other Federal
research agencies. Moreover, commenters requested that a definition of
``significant financial interest'' be added to the policy and that that
definition include dollar thresholds for what should and should not be
considered a significant financial interest. Response: NASA has updated
the definition of ``conflict of interest'' to align to that used by
other Federal research agencies, removed all references to conflicts of
commitment, and added a definition for ``significant financial
interest'' that includes dollar thresholds.
A few comments requested that NASA revise the time at which
conflict of interest information had to be reviewed and managed. Per
the comments, other Federal agencies require that significant financial
interest disclosures be reviewed and managed, as necessary, prior to
the expenditure of award funds. NASA's proposed policy, on the other
hand, required conflict of interest information to be reviewed and
managed prior to application submission. Response: NASA recognizes that
its proposed policy included requirements for the review and management
of conflict of interest information that is burdensome and inconsistent
with other Federal research agencies. NASA has revised the policy to
require that significant financial interest disclosures be reviewed and
managed, reduced, or eliminated prior to the expenditure of awards
funds.
One comment requested that NASA clarify how its proposed policy
would impact subaward recipients. Response: NASA has added language to
the policy describing pass-through entities' and subaward recipients'
responsibilities.
One comment recommended that NASA add language to the proposed
policy specifically allowing the use of independent third party or
contracted services for the provision of technical assistance to meet
the due diligence and review requirements described in the policy.
Response: NASA has declined to add this recommended language to the
policy. As written, the policy permits discretion when grant and
cooperative
[[Page 60244]]
agreement recipients are determining which individual(s) is responsible
for soliciting and reviewing significant financial interest
disclosures.
One comment recommended that the proposed policy be updated to
include language allowing security review requirements to be considered
a direct cost or, at a minimum, considered a reasonable and allocable
cost under title 2 of the Code of Federal Regulations part 200,
sections 404 and 405. Response: NASA assumes that this comment was made
in response to language in the proposed policy's definition of
conflicts of commitment that pertained to conflicting obligations that
threaten research security. Given that all references to conflicts of
commitment have been removed, NASA has declined to add this recommended
language.
The full text of the policy and term and condition is provided
below:
GCAM section 3.3, Conflicts of Interest Policy, is revised as
follows:
1. For the purposes of section 3.3, the following definitions
apply:
a. The term ``conflict of interest,'' or ``COI,'' means a situation
in which an investigator, or the investigator's spouse or dependent
children, has a significant financial interest that could directly and
significantly affect the design, conduct, or reporting of NASA-funded
research.
b. The term ``significant financial interest'' means anything of
monetary value, including, but not limited to, salary and any payment
for services not otherwise identified as salary (e.g., consulting fees
or honoraria), equity interest (e.g., stock, stock options, private
equity, or other ownership interests), venture or other capital
financing, and intellectual property rights (e.g., patents, copyrights,
and royalties from such rights). The term does not include the
following:
i. Salaries, royalties, or other remuneration paid by the proposing
institution to the investigator if the investigator is currently
employed or otherwise appointed by the institution;
ii. Any ownership interests in the proposing institution if the
institution is a commercial or for-profit organization;
iii. Income from investment vehicles, such as mutual funds and
retirement accounts, as long as the investigator does not directly
control the investment decisions made in these vehicles;
iv. Income from seminars, lectures, or teaching engagements
sponsored by a public or nonprofit entity;
v. Income from service on advisory committees or review panels for
a public or nonprofit entity;
vi. An equity interest that, when aggregated for the investigator
and the investigator's spouse and dependent children, meets both of the
following tests: (1) does not exceed $10,000 in value as determined
through reference to public prices or other reasonable measures of fair
market value and (2) does not represent more than a 5 percent ownership
interest in any single entity; or
vii. Salaries, royalties, or other payments that, when aggregated
for the investigator and the investigator's spouse and dependent
children, are not expected to exceed $10,000 during the prior twelve-
month period.
c. The term ``institution'' means any domestic or foreign, public
or private, entity or organization that is applying for, or that
receives, a NASA research grant or cooperative agreement.
d. The term ``investigator'' means the principal investigator,
project director, and any other person, regardless of title or
position, identified on the proposed project who is responsible for the
design, conduct, or reporting of research funded or proposed for
funding by NASA.
2. All recipients of NASA research grants and cooperative
agreements (hereinafter ``award'') shall maintain a written and
enforced policy addressing COI. Pass-through entities shall be
responsible for ensuring that (1) subaward recipients have their own
policies in place that meet the requirements of NASA's COI policy or
(2) investigators working for subaward recipients follow the COI
policies of the pass-through entity.
3. Institutions' COI policies shall:
a. Designate an official(s) to solicit disclosures of significant
financial interests (including those of the investigator's spouse and
dependent children) of investigators that would reasonably appear to be
affected by research funded or proposed to be funded by NASA or in
entities whose financial interests would reasonably appear to be
affected by such activities.
b. Ensure that investigators who are planning to participate in
NASA-funded research disclose to the institution's designated
official(s) the investigator's significant financial interests no later
than the time of application for NASA-funded research. Institutions
must also require that disclosures are updated during the award's
period of performance, either on an annual basis, or as new reportable
significant financial interests are obtained.
c. Prior to an institution's expenditure of any funds under a NASA-
funded research award, institutions shall require the designated
official(s) to review investigators' disclosures of significant
financial interests, determine whether a COI exists, and, if so,
determine what conditions or restrictions, if any, should be imposed by
the institution to manage, reduce, or eliminate such COI. Examples of
conditions or restrictions that an institution or subrecipient might
impose to manage, reduce, or eliminate a conflict include, but are not
limited to:
i. Public disclosure of the COI (e.g., when presenting or
publishing the research),
ii. Monitoring of research by independent reviewers,
iii. Modification of the research plan,
iv. Change of personnel or personnel responsibilities,
v. Disqualification of personnel from participation in all or a
portion of the NASA-funded activity,
vi. Divestiture of significant financial interests that create the
COI (e.g., sale of an equity interest), or
vii. Severance of relationships that create the COI.
d. Establish adequate enforcement mechanisms and provide for
employee sanctions or other administrative actions to ensure
investigators' compliance as appropriate.
e. Institutions may apply COI disclosure standards that are more
stringent than section 3.3 of this Manual (e.g., standards that require
more extensive disclosure of financial interests).
4. Institutions shall adhere to the following notification
requirements:
a. Prior to the expenditure of any funds under a NASA-funded
research award, institutions shall notify the NASA Grant Officer(s)
listed on the related award(s) in writing of any COI that cannot be
satisfactorily managed, reduced, or eliminated in accordance with the
institution's policy. In cases in which an institution identifies a COI
and manages, reduces, or eliminates it prior to the expenditure of
NASA-awarded funds, the institution shall not submit a COI notification
to NASA.
b. After the expenditure of award funds, institutions shall notify
NASA within 60 days of any subsequently identified COI that cannot be
managed, reduced, or eliminated.
c. Notifications shall include sufficient information to enable
NASA to understand the nature and extent of the COI (e.g., award
number, name of investigator with the COI, nature of the significant
financial interest, etc.).
5. When an institution notifies a NASA Grant Officer(s) of a COI
that cannot be eliminated, managed, or reduced, the cognizant Grant
Officer or one of their delegates will report the conflict to the
Office of the General Counsel (OGC) as follows:
[[Page 60245]]
a. Grant Officers will report the conflict to the NASA Shared
Services Center's (NSSC) OGC and copy the award's Technical Officer.
The NSSC OGC then will inform HQ OGC of the reported conflict. In
consultation with OGC and the relevant Technical Officer, the Grant
Officer must review the COI and take appropriate action, as necessary.
i. When an institution notifies NASA of a COI that involves any
foreign governments, their instrumentalities, or any other entities
owned, funded, or otherwise controlled by a foreign government, the
cognizant Grant Officer must review the COI and take appropriate
action, as necessary, in consultation with the award's Technical
Officer, OGC, and the NASA Office of International and Interagency
Relations (OIIR).
ii. If fraud, misrepresentation, or related misconduct is suspected
in relation to any COI notification submitted to NASA, then the Grant
Officer or Technical Officer also will refer the matter to the NASA
Office of Inspector General and OGC's Acquisition Integrity Program.
b. If a Grant Officer must take appropriate actions after
conducting the reviews described above, then they will do so in
accordance with the remedies for noncompliance and termination
provisions in 2 CFR 200.339 through Sec. 200.343. Remedies for
noncompliance include but are not limited to:
i. Temporarily withholding payment,
ii. Disallowing all or part of the cost of an award activity,
iii. Wholly or partly suspending or terminating the award,
iv. Initiating referrals for consideration of suspension or
debarment proceedings, and
v. Withholding further Federal awards for the project or program.
c. A Grant Officer intending to take action per paragraph (b) of
this section, with the exception of paragraph (b)(iv), will notify each
institution about the specific reason for the action and will adhere to
the requirements in GCAM section 7.13, Appealing a Suspended or
Terminated Award, as necessary. However, notice of suspension or
debarment proceedings will be issued consistent with 2 CFR part 180, as
adopted by NASA at 2 CFR part 1880. Additionally, if NASA determines
that an investigator will be disqualified from participating on an
award due to a COI that cannot be managed, reduced, or eliminated, then
NASA will offer the institution an opportunity to address the COI prior
to taking action on the award.
Appendix D, Award Terms and Conditions, is revised as follows:
D39. Conflict of Interest Policy Requirements
a. All NASA grant and cooperative agreement recipients shall comply
with the conflict of interest policy and notification requirements in
section 3.3, Conflicts of Interest Policy, of the NASA Grant and
Cooperative Agreement Manual (GCAM), as amended by Grant Information
Circular 23-07, Conflict of Interest Policy.
End of Policy and Term and Condition
NASA has implemented the new policy and term and condition through
GIC 23-07, which modifies sections 3.3, Conflicts of Interest Policy,
and Appendix D, Award Terms and Conditions, of the Grant and
Cooperative Agreement Manual. The policy and term and condition are
effective December 1, 2023, and the term and condition will be placed
into new and amended awards at that time.
Antanese Crank,
Chief, Grants Policy and Compliance.
[FR Doc. 2023-18802 Filed 8-30-23; 8:45 am]
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