[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 
<a href="/cdn-cgi/l/email-protection#f3909b819a80879c839b9681dd96dd9e868194869a92b39d928092dd949c85"><span class="__cf_email__" data-cfemail="99faf1ebf0eaedf6e9f1fcebb7fcb7f4ecebfeecf0f8d9f7f8eaf8b7fef6ef">[email protected]</span></a> 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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