IN THE SENATE OF THE UNITED STATES
April 22, 2021
Mr. Coons (for himself, Mr. Graham, and Mr. Luján) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
To establish the Foundation for Energy Security and Innovation, and for other purposes.
This Act may be cited as the
Partnerships for Energy Security and Innovation Act of 2021.
In this Act:
The term Board means the Board of Directors described in section 3(b)(1).
The term Department means the Department of Energy.
Executive Director means the Executive Director described in section 3(e)(1).
The term Foundation means the Foundation for Energy Security and Innovation established under section (3)(a).
The term National Laboratory has the meaning given the term in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801).
The term Secretary means the Secretary of Energy.
Foundation for Energy Security and Innovation
Not later than 180 days after the date of enactment of this Act, the Secretary shall establish a nonprofit corporation to be known as the
Foundation for Energy Security and Innovation.
The mission of the Foundation shall be—
to support the mission of the Department; and
to advance collaboration with energy researchers, institutions of higher education, industry, and nonprofit and philanthropic organizations to accelerate the commercialization of energy technologies.
The Foundation shall not be an agency or instrumentality of the Federal Government.
The Board shall take all necessary and appropriate steps to ensure that the Foundation is an organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of that Code.
Collaboration with existing organizations
The Secretary may collaborate with 1 or more organizations to establish the Foundation and carry out the activities of the Foundation.
Board of Directors
The Foundation shall be governed by a Board of Directors.
The Board shall be composed of the ex officio nonvoting members described in subparagraph (B) and the appointed voting members described in subparagraph (C).
Ex officio members
The ex officio members of the Board shall be the following individuals or designees of those individuals:
The Under Secretary for Science and Energy.
The Under Secretary for Nuclear Security.
The Chief Commercialization Officer.
The Secretary and the other ex officio members of the Board shall—
seek to enter into an agreement with the National Academies of Sciences, Engineering, and Medicine to develop a list of individuals to serve as members of the Board who are well-qualified and will meet the requirements of clauses (ii) and (iii); and
appoint the initial members of the Board from that list, if applicable, in consultation with the National Academies of Sciences, Engineering, and Medicine.
The appointed members of the Board shall reflect a broad cross-section of stakeholders from academia, industry, nonprofit organizations, State or local governments, the investment community, the philanthropic community, and management and operating contractors of the National Laboratories.
The Secretary shall ensure that a majority of the appointed members of the Board—
has experience in the energy sector;
has research experience in the energy field; or
has experience in technology commercialization or foundation operations; and
to the extent practicable, represents diverse regions, sectors, and communities.
Chair and Vice Chair
The Board shall designate from among the members of the Board—
an individual to serve as Chair of the Board; and
an individual to serve as Vice Chair of the Board.
The term of service of the Chair and Vice Chair of the Board shall end on the earlier of—
the date that is 3 years after the date on which the Chair or Vice Chair of the Board, as applicable, is designated for the position; and
the last day of the term of service of the member, as determined under paragraph (4)(A), who is designated to be Chair or Vice Chair of the Board, as applicable.
The Chair and Vice Chair of the Board—
shall not be representatives of the same area of subject matter expertise, or entity, as applicable, under paragraph (2)(C)(ii); and
shall not be representatives of any area of subject matter expertise, or entity, as applicable, represented by the immediately preceding Chair and Vice Chair of the Board.
Terms and vacancies
The term of service of each appointed member of the Board shall be not more than 5 years.
Initial appointed members
Of the initial members of the Board appointed under paragraph (2)(C)(i), half of the members shall serve for 4 years and half of the members shall serve for 5 years, as determined by the Chair of the Board.
Any vacancy in the membership of the appointed members of the Board—
shall be filled in accordance with the bylaws of the Foundation by an individual capable of representing the same area or entity, as applicable, as represented by the vacating board member under paragraph (2)(C)(ii);
shall not affect the power of the remaining appointed members to execute the duties of the Board; and
shall be filled by an individual selected by the Board.
Not later than 60 days after the Board is established, the Secretary shall convene a meeting of the ex officio and appointed members of the Board to incorporate the Foundation.
A majority of the appointed members of the Board shall constitute a quorum for purposes of conducting the business of the Board.
The Board shall—
establish bylaws for the Foundation in accordance with paragraph (7);
provide overall direction for the activities of the Foundation and establish priority activities;
carry out any other necessary activities of the Foundation;
evaluate the performance of the Executive Director; and
actively solicit and accept funds, gifts, grants, devises, or bequests of real or personal property to the Foundation, including from private entities.
The bylaws established under paragraph (6)(A) may include—
policies for the selection of Board members, officers, employees, agents, and contractors of the Foundation;
policies, including ethical standards, for—
the acceptance, solicitation, and disposition of donations and grants to the Foundation, including appropriate limits on the ability of donors to designate, by stipulation or restriction, the use or recipient of donated funds; and
the disposition of assets of the Foundation;
policies that subject all employees, fellows, trainees, and other agents of the Foundation (including ex officio and appointed members of the Board) to conflict of interest standards; and
the specific duties of the Executive Director.
The Board shall ensure that the bylaws of the Foundation and the activities carried out under those bylaws shall not—
reflect unfavorably on the ability of the Foundation to carry out activities in a fair and objective manner; or
compromise, or appear to compromise, the integrity of any governmental agency or program, or any officer or employee employed by, or involved in, a governmental agency or program.
No member of the Board shall receive compensation for serving on the Board.
In accordance with the bylaws of the Foundation, members of the Board may be reimbursed for travel expenses, including per diem in lieu of subsistence, and other necessary expenses incurred in carrying out the duties of the Board.
The purposes of the Foundation are—
to support the Department in carrying out the mission of the Department to ensure the security and prosperity of the United States by addressing energy, environmental, and nuclear challenges through transformative science and technology solutions; and
to increase private and philanthropic sector investments that support efforts to create, characterize, develop, test, validate, and deploy or commercialize innovative technologies that address crosscutting national energy challenges by methods that include—
fostering collaboration and partnerships with researchers from the Federal Government, State governments, institutions of higher education, federally funded research and development centers, industry, and nonprofit organizations for the research, development, or commercialization of transformative energy and associated technologies;
strengthening and sharing best practices relating to regional economic development through scientific and energy innovation, including in partnership with an Individual Laboratory-Associated Foundation (as defined in subsection (d)(7)(A));
promoting new product development that supports job creation;
administering prize competitions to accelerate private sector competition and investment;
supporting programs that advance technology maturation, especially where there may be gaps in Federal or private funding in advancing a technology to deployment or commercialization from the prototype stage to a commercial stage; and
facilitating access to Department facilities, equipment, and human expertise to assist in tackling national challenges.
Studies, competitions, and projects
The Foundation may conduct and support studies, competitions, projects, and other activities that further the purposes of the Foundation described in subsection (c).
Fellowships and grants
The Foundation may award fellowships and grants for activities relating to research, development, demonstration, maturation, or commercialization of energy and other Department-supported technologies.
Form of award
A fellowship or grant under subparagraph (A) may consist of a stipend, health insurance benefits, funds for travel, and funds for other appropriate expenses.
In selecting a recipient for a fellowship or grant under subparagraph (A), the Foundation—
shall make the selection based on the technical and commercialization merits of the proposed project of the potential recipient; and
may consult with a potential recipient regarding the ability of the potential recipient to carry out various projects that would further the purposes of the Foundation described in subsection (c).
A National Laboratory that applies for or accepts a grant under subparagraph (A) shall not be considered to be engaging in a competitive process.
Accessing facilities and expertise
The Foundation may work with the Department—
to leverage the capabilities and facilities of National Laboratories to commercialize technology; and
to assist with resources, including by providing information on the assets of each National Laboratory that may enable the deployment and commercialization of technology.
Training and education
The Foundation may support programs that provide training to researchers, scientists, and other relevant personnel at National Laboratories and institutions of higher education to help demonstrate, deploy, and commercialize federally funded technology.
The Foundation shall support programs that provide maturation funding to researchers to advance the technology of those researchers for the purpose of moving products from a prototype stage to a commercial stage.
The Foundation shall convene, and may consult with, representatives from the Department, institutions of higher education, National Laboratories, the private sector, and commercialization organizations to develop programs for the purposes of the Foundation described in subsection (c) and to advance the activities of the Foundation.
Individual and Federal laboratory-associated foundations
In this paragraph:
covered foundation means each of the following:
An Individual Laboratory-Associated Foundation.
a Federal Laboratory-Associated Foundation established pursuant to section 4(a).
Individual Laboratory-Associated Foundation
Individual Laboratory-Associated Foundation means a Laboratory Foundation established by an operating contractor of a National Laboratory.
The Foundation shall provide support to and collaborate with covered foundations.
Guidelines and templates
For the purpose of providing support under subparagraph (B), the Secretary shall establish suggested guidelines and templates for covered foundations, including—
a standard adaptable organizational design for responsible management;
standard and legally tenable bylaws and money-handling procedures; and
a standard training curriculum to orient and expand the operating expertise of personnel employed by covered foundations.
Nothing in this paragraph requires—
an existing Individual Laboratory-Associated Foundation to modify current practices or affiliate with the Foundation; or
a covered foundation to be bound by charter or corporate bylaws as permanently affiliated with the Foundation.
The Foundation may establish 1 or more for-profit subsidiaries, including an impact investment fund—
to stimulate economic development activities relating to the purposes of the Foundation described in subsection (c); and
to attract for-profit investment partners for technology translation and commercialization activities.
Authorities of the for-profit subsidiary
Subject to clause (ii), a for-profit subsidiary established under subparagraph (A) may—
enter into a partnership with an economic development corporation, including an incubator, accelerator, or small business investment company;
pay for the cost of building and administering a facility, including a microlab or incubator, to support the activities of the Foundation described in this subsection; and
provide funding to a startup.
Cost recovery requirements
A for-profit subsidiary established under subparagraph (A) shall—
ensure that the Foundation owns any intellectual property rights generated through activities funded by the for-profit subsidiary, if appropriate; and
own an equity stake in any startup invested in by the for-profit subsidiary.
The Foundation may carry out supplemental programs—
to conduct and support forums, meetings, conferences, courses, and training workshops consistent with the purposes of the Foundation described in subsection (c);
to support and encourage the understanding and development of—
data that promotes the translation of technologies from the research stage, through the development and maturation stage, and ending in the market stage; and
policies that make regulation more effective and efficient by leveraging the technology translation data described in clause (i) for the regulation of relevant technology sectors;
for writing, editing, printing, publishing, and vending books and other materials relating to research carried out under the Foundation and the Department; and
to conduct other activities to carry out and support the purposes of the Foundation described in subsection (c).
The Foundation shall support the development of an evaluation methodology, to be used as part of any program supported by the Foundation, that shall—
consist of qualitative and quantitative metrics; and
include periodic third party evaluation of those programs and other activities of the Foundation.
The Foundation shall develop an expertise in communications to promote the work of grant and fellowship recipients under paragraph (2), the commercialization successes of the Foundation, opportunities for partnership with the Foundation, and other activities.
Solicitation and use of funds
The Foundation may solicit and accept gifts, grants, and other donations, establish accounts, and invest and expend funds in support of the activities and programs of the Foundation.
The Board shall hire an Executive Director of the Foundation, who shall serve at the pleasure of the Board.
No member of the Board, officer or employee of the Foundation or of any program established by the Foundation, or participant in a program established by the Foundation, shall exercise administrative control over any Federal employee.
Not later than 1 year after the date of enactment of this Act, the Foundation shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Science, Space, and Technology of the House of Representatives a strategic plan that contains—
a plan for the Foundation to become financially self-sustaining in fiscal year 2023 and thereafter (except for the amounts provided each fiscal year under subsection (l)(1)(C));
a forecast of major crosscutting energy challenge opportunities, including short- and long-term objectives, identified by the Board, with input from communities representing the entities and areas of subject matter expertise, as applicable, described in subsection (b)(2)(C)(ii);
a description of the efforts that the Foundation will take to be transparent in the processes of the Foundation, including processes relating to—
grant awards, including selection, review, and notification;
communication of past, current, and future research priorities; and
solicitation of and response to public input on the opportunities identified under subparagraph (B);
a description of the financial goals and benchmarks of the Foundation for the following 10 years; and
a description of the efforts undertaken by the Foundation to ensure maximum complementarity and minimum redundancy with investments made by the Department.
Not later than 1 year after the date on which the Foundation is established, and every 2 years thereafter, the Foundation shall submit to the Committee on Energy and Natural Resources of the Senate, the Committee on Science, Space, and Technology of the House of Representatives, and the Secretary a report that, for the year covered by the report—
describes the activities of the Foundation and the progress of the Foundation in furthering the purposes of the Foundation described in subsection (c);
provides a specific accounting of the source and use of all funds made available to the Foundation to carry out those activities to ensure transparency in the alignment of Department missions and policies with national security;
describes how the results of the activities of the Foundation could be incorporated into the procurement processes of the General Services Administration; and
includes a summary of each evaluation conducted using the evaluation methodology described in subsection (d)(10).
Evaluation by Comptroller General
Not later than 5 years after the date on which the Foundation is established, the Comptroller General of the United States shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Science, Space, and Technology of the House of Representatives—
an evaluation of—
the extent to which the Foundation is achieving the mission of the Foundation; and
the operation of the Foundation; and
any recommendations on how the Foundation may be improved.
The Foundation shall—
provide for annual audits of the financial condition of the Foundation; and
make the audits, and all other records, documents, and papers of the Foundation, available to the Secretary and the Comptroller General of the United States for examination or audit.
Separate fund accounts
The Board shall ensure that any funds received under subsection (l)(1) are held in a separate account from any other funds received by the Foundation.
To ensure integrity in the operations of the Foundation, the Board shall develop and enforce procedures relating to standards of conduct, financial disclosure statements, conflicts of interest (including recusal and waiver rules), audits, and any other matters determined appropriate by the Board.
Financial conflicts of interest
Any individual who is an officer, employee, or member of the Board is prohibited from any participation in deliberations by the Foundation of a matter that would directly or predictably affect any financial interest of—
a relative (as defined in section 109 of the Ethics in Government Act of 1978 (5 U.S.C. App.)) of that individual; or
a business organization or other entity in which the individual has an interest, including an organization or other entity with which the individual is negotiating employment.
The Board shall adopt written standards to govern the ownership and licensing of any intellectual property rights—
developed by the Foundation through activities funded by a for-profit subsidiary established under subsection (d)(8); or
otherwise derived from the collaborative efforts of the Foundation.
The United States shall not be liable for any debts, defaults, acts, or omissions of—
a Federal entity with respect to an agreement of that Federal entity with the Foundation; or
an Individual Laboratory-Associated Foundation (as defined in subsection (d)(7)(A)) with respect to an agreement of that Federal entity with the Foundation.
Full faith and credit
The full faith and credit of the United States shall not extend to any obligations of the Foundation.
Nonapplicability of FACA
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Foundation.
The Secretary shall collaborate with the Foundation to develop a process to ensure collaboration and coordination between the Department, the Foundation, and National Laboratories—
to streamline contracting processes between National Laboratories and the Foundation, including by—
streamlining the ability of the Foundation to transfer equipment and funds to National Laboratories;
standardizing contract mechanisms to be used by the Foundation in engaging with National Laboratories; and
streamlining the ability of the Foundation to fund endowed positions at National Laboratories;
to allow a National Laboratory or site of a National Laboratory—
to accept and perform work for the Foundation, consistent with provided resources, notwithstanding any other provision of law governing the administration, mission, use, or operations of the National Laboratory or site, as applicable; and
to perform that work on a basis equal to other missions at the National Laboratory; and
to permit the director of any National Laboratory or site of a National Laboratory to enter into a cooperative research and development agreement or negotiate a licensing agreement with the Foundation pursuant to section 12 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a).
The Secretary shall appoint liaisons from across the Department to collaborate and coordinate with the Foundation, including not less than 1 liaison from the Office of Technology Transitions, who shall ensure that the Foundation works in conjunction with the Technology Commercialization Fund of the Department.
The Secretary shall leverage appropriate arrangements, contracts, and directives to carry out the process developed under paragraph (1).
Nothing in this section exempts the Foundation from any national security policy of the Department.
The Secretary shall provide facilities, utilities, and support services to the Foundation if it is determined by the Secretary to be advantageous to the research programs of the Department.
Subsection (a)(1) of section 1341 of title 31, United States Code (commonly referred to as the
Anti-Deficiency Act), shall not apply to any Federal officer or employee carrying out any activity of the Foundation using funds of the Foundation.
Preemption of authority
This section shall not preempt any authority or responsibility of the Secretary under any other provision of law.
The Foundation may transfer funds to the Department, which shall be subject to all applicable Federal limitations relating to federally funded research.
Authorization of appropriations
There are authorized to be appropriated—
to the Secretary, not less than $1,500,000 for fiscal year 2022 to establish the Foundation;
to the Foundation, not less than $30,000,000 for fiscal year 2023 to carry out the activities of the Foundation; and
to the Foundation, not less than $3,000,000 for fiscal year 2024, and each fiscal year thereafter, for administrative and operational costs.
Funds made available under paragraph (1)(B) shall be required to be cost-shared by a partner of the Foundation other than the Department.
National Energy Technology Laboratory-Associated Foundation
Notwithstanding any other provision of law, the National Energy Technology Laboratory may establish, or enter into an agreement with a nonprofit organization to establish, a Federal Laboratory-Associated Foundation (referred to in this section as a
Laboratory Foundation) to support the mission of the National Energy Technology Laboratory.
Not agency or instrumentality
A Laboratory Foundation shall not be an agency or instrumentality of the Federal Government.
A Laboratory Foundation established under paragraph (1) shall have a separate governance structure from, and shall be managed independently of, the National Energy Technology Laboratory.
Activities of a Laboratory Foundation may include—
conducting support studies, competitions, projects, research, and other activities that further the purpose of the Laboratory Foundation;
carrying out programs to foster collaboration and partnership among researchers from the Federal Government, State governments, institutions of higher education, federally funded research and development centers, and industry and nonprofit organizations relating to the research, development, and commercialization of federally supported technologies;
carrying out programs to leverage technologies to support new product development that supports regional economic development;
administering prize competitions to accelerate private sector competition and investment;
providing fellowships and grants to research and development personnel at, or affiliated with, federally funded centers, in accordance with subsection (c);
carrying out programs—
that allow scientists from foreign countries to serve in research capacities in the United States or other countries in association with the National Energy Technology Laboratory;
that provide opportunities for employees of the National Energy Technology Laboratory to serve in research capacities in foreign countries;
to conduct studies, projects, or research in collaboration with national and international nonprofit and for-profit organizations, which may include the provision of stipends, travel, and other support for personnel;
to hold forums, meetings, conferences, courses, and training workshops that may include undergraduate, graduate, post-graduate, and post-doctoral accredited courses; and
for the accreditation of those courses by the Laboratory Foundation at the State and national level for college degrees or continuing education credits;
to support and encourage teachers and students of science at all levels of education;
to promote an understanding of science amongst the general public;
for writing, editing, printing, publishing, and vending of relevant books and other materials; and
for the conduct of other activities to carry out and support the purpose of the Laboratory Foundation; and
receiving, administering, soliciting, accepting, and using funds, gifts, devises, or bequests, either absolutely or in trust of real or personal property or any income therefrom, or other interest or equity therein for the benefit of, or in connection with, the mission of the applicable Federal laboratory, in accordance with subsection (d).
Fellowships and grants
Recipients of fellowships and grants described in subsection (b)(5) shall be selected—
by the donors of a Laboratory Foundation and a Laboratory Foundation;
subject to the agreement of the head of the agency the mission of which is supported by a Laboratory Foundation; and
in the case of a fellowship, based on the recommendation of the employees of the National Energy Technology Laboratory at which the fellow would serve.
Fellowships and grants described in subsection (b)(5) may include stipends, travel, health insurance, benefits, and other appropriate expenses.
An amount of funds, a gift, a devise, or a bequest described in subsection (b)(7) may be accepted by a Laboratory Foundation regardless of whether it is encumbered, restricted, or subject to a beneficial interest of a private person if any current or future interest of the funds, gift, devise, or bequest is for the benefit of the research and development activities of the National Energy Technology Laboratory.
Ownership by Federal Government
A contribution, gift, or any other transfer made to or for the use of a Laboratory Foundation shall be regarded as a contribution, gift, or transfer to or for the use of the Federal Government.
The United States shall not be liable for any debts, defaults, acts, or omissions of a Laboratory Foundation.
Transfer of funds
Notwithstanding any other provision of law, a Laboratory Foundation may transfer funds to the National Energy Technology Laboratory and the National Energy Technology Laboratory may accept that transfer of funds.
This section shall not alter or supersede any other provision of law governing the authority, scope, establishment, or use of nonprofit organizations by a Federal agency.