Background

Federal agencies and policymakers have expressed concern that foreign entities may be using the academic research enterprise in an attempt to compromise the United States’ economic competitiveness and national security. In response, federal funding agencies have sought to clarify longstanding policies and issued new guidance that clarifies what principal investigators (PIs) should be disclosing to a federal sponsor about foreign connections.

Although the wording of federal sponsor guidance on reporting foreign influence and participation is not that much different from what PIs may have seen in the past, the reality is that federal agencies are interpreting guidance in these areas more rigorously. Recently PIs that have failed to provide required information have become the focus of institutional and funding agency concern. A growing number of these PIs also have become the subject of law enforcement scrutiny, often with serious consequences.

It is therefore important for PIs (and the research administrators [RAs] that assist PIs) to understand what is required by federal agencies relative to foreign influences and to make sure all of the required information is provided according to the specific guidelines of each federal sponsor at the proposal, JIT, award, and/or post award stages.

Although there are currently attempts to harmonize these requirements across federal sponsors, each of the federal funding agencies that have issued guidance related to foreign influence have approached this matter in a slightly different manner. However, the basic foreign influence concerns of federal sponsors fall into these categories:

  1. Peer review violations
  2. Failure to disclose substantial foreign resources:
    • Foreign employment arrangements
    • Foreign grant support that creates problems with overlap, or over-commitment
    • Non-disclosure of substantial foreign research support
    • Free labor (visiting scholar/student funded by a foreign source)
    • Talents awards
    • Foreign grants – Hidden transfers of information, know-how, data, person-time
  3. Failure to disclose significant foreign financial Conflict of Interest:
    • Equity in foreign companies
    • Foreign patents that leverage US tax-payer funded work
  4. Failure to comply with U.S. Export Control laws and regulations that establish a set of requirements for the transfer of technology and data to foreign countries and/or foreign nationals in the U.S and interactions with individuals or entities on the sanctions Office of Foreign Assets Control (OFAC) sanctions list.

The following guidance has been prepared to ensure that research and educational activities at Berkeley are compliant with federal regulations, state laws, university policy, and federal sponsor requirements.


Peer Review

During grant and manuscript reviews, confidentiality helps protect ideas before they are funded or published. Peer reviewers have an obligation to preserve confidentiality during the review process. Remember:

  • Never share information gained through peer review processes, whether reviewing grant applications or publications. This information is confidential.
  • Declare all competing or conflicting interests when agreeing to serve as a reviewer. Check the requirements of the relevant agency or journal. If in doubt, disclose or ask.

Disclosing Foreign Connections

First, it is important to approach this task with the understanding that the University is committed to maintaining and building successful partnerships with unrestricted foreign colleagues and institutions around the world.

The University is committed to maintaining and building successful partnerships with unrestricted foreign colleagues and institutions around the world as well as the free and open exchange of ideas between and among the U.S. and international participants in these collaborations. These values are confirmed in a letter concerning foreign influences from the President of the University of California.

It is UC policy not to discriminate on the basis of race, color, national origin, religion, sex, physical or mental disability, medical condition (cancer-related or genetic characteristics), ancestry, marital status, age, sexual orientation, citizenship, or status as a covered veteran. UC institutions do not accept grant and contract awards with restrictions based on citizenship except when the purpose of the project is for workforce development (Contract & Grant Manual section 14-700).

Second, Project Directors (PDs) and Principal Investigators (PIs) should always read the most current sponsor guidance on what is required, and provide this information. Do not rely on what you always provided in the past.

The rules have not changed but they are being interpreted more strictly from a national security perspective. Also, the rules are likely to be augmented as new sponsor policy is developed and as new federal and state laws are enacted. In short, do not rely on past behavior to meet these new requirements.

Concern about foreign influences is and will continue to be an unsettled policy landscape. There are few clear-cut answers, and the answers from federal agencies may change over time. PDs/PIs are advised to pay attention to federal proposal guidelines, the terms and conditions of federal awards received, policy updates from the federal agencies (announced via SPO News or posted on the SPO website), and to be prepared for changes in this area, and when in doubt, disclose.

Third, the PD/PI is responsible for ensuring that all information contained in the proposal, including foreign influence disclosures, is true and accurate.

When the PD/PI signs off on a proposal in Phoebe, the PD/PI is certifying to the following statement for all covered personnel named in the proposal:

I certify to the accuracy and completeness of all Other/Current and Pending Support documents contained in this proposal and that the support described from both domestic and international sources is in accordance with the application guidelines or the sponsor’s instructions.

This means that it is the PD’s/PI’s responsibility to make sure that the information provided is up-to-date and meets the requirements of the sponsor.   

The following are the basic steps PDs/PIs should take to ensure compliance with the evolving foreign influence requirements of the University, federal sponsors, and federal and state law.


Compliance Basics

  1. Faculty must disclose all outside professional activities as required under Section 025 of the Academic Personnel Manual (APM).

    All Senate faculty members are required to complete annual reports concerning their recent compensated outside activities. Additionally, they are required to obtain prior approval before engaging in compensated outside activities that have the potential to create conflicts of commitment. See this one-page Conflict of Commitment Overview of these requirements.

    By October 31st of each year, deans are required to submit a report to the Academic Personnel Office certifying that all Form II reports have been submitted or supplying a list of those faculty members from whom reports have not yet been received. No faculty advancement case may come forward unless the dean has certified that the faculty member has submitted all required reports during the review period.

    As of fall 2020 such reports and requests will be submitted electronically through the Outside Activities Tracking System (OATS). For more information, see the Academic Personnel Outside Activity Tracking System (OATS) page.

    When an activity is entered into OATS, the system will determine if the activity is designated as Category I (activities that have the potential to create a conflict of commitment). The system will then prompt you for additional information; it will automatically route the request for review and approval.

    Please note that Category I activities require prior approval before you may start them. Examples of Category I activities include, but are not limited to, the following: assuming a managerial position in a for-profit or not-for-profit enterprise; administering a grant outside the University that would ordinarily be conducted under the auspices of the University; teaching for another institution; and establishing a relationship as a salaried employee outside the University.

    Faculty may log in to OATS on the UC Berkeley OATS website.

  2. PDs/PIs are responsible for ensuring that all the Federal and State mandated financial conflict of interest (COI) disclosures required by the sponsor have been met.

    PDs/PIs applying for funding from sponsors that have COI requirements must ensure that all covered personnel involved in the project disclose outside financial interest(s) or obligation(s) that have the potential, whether real or perceived, to bias a research project or cause harm to human subjects participating in a research project.

    California State Law requires disclosures from PIs and Co-PIs applying for funds from non-governmental agencies except those on the FPPC Exempt List.

    NSF, PHS agencies (e.g., NIH) and other sponsors that have adopted NSF/PHS guidelines require disclosures from all individuals responsible for the design, conduct, or reporting of the funded research project.

    The “triggers” of what and when to disclose vary across sponsors. See this overview of COI reporting guidelines for more information.

  3. PDs/PIs are responsible for determining when information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil.

    Export control laws are implemented by both the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR).

    Export regulations apply whether or not the recipient is funded by a grant, contract, or other agreement, and apply whether or not the EAR or ITAR are cited in the award document. If a researcher accepts export-controlled technology or information from a government agency or from industry, the researcher is subject to ITAR or EAR regulations.

    Note: Most UC Berkeley research activities are excluded from export controls because of a general exception for “fundamental research” under the export control regulations. By not accepting any restriction on publication or foreign nationals, UC Berkeley protects the fundamental research exemption.

    However, PIs are advised to submit an Export Control Service Request Form to obtain guidance on sharing controlled technology with foreign persons overseas or in your lab, international research collaborations, traveling or shipping research materials overseas. Submission of this form will ensure that requests/questions are noted, time stamped, and tracked. For follow up questions after submitting the form, please contact ec-team@berkeley.edu.

  4. PDs/PIs are responsible for making sure that all covered personnel disclose all current and pending support and affiliations, whether paid, unpaid, domestic or foreign, as required by the sponsor.

    Make sure covered personnel report (when required to do so):
    •  All funding and/or in-kind support or resources you receive from a domestic and/or foreign entity
    •  Any paid or unpaid courtesy or honorary appointments that you hold at other institutions (foreign and/or domestic) and
    • Your participation in any foreign talent recruitment programs
    • Any involvement of foreign entities in your externally funded projects

Guidance from Key Agencies

Below are links to summary pages for key agencies that fund research activities at UC Berkeley and their specific guidance related to foreign influence and reporting obligations.


Retroactive Disclosures

Mistakes will be made, and reportable foreign connections may be overlooked and not disclosed as required. When this occurs, PIs should take the following action:

As soon as possible following the submission of a proposal, JIT information, RPPR or required disclosure form and even prior to closeout: Notify SPO if you failed to include a reportable foreign relationship or foreign component. SPO will guide you through the process of disclosing this information to the sponsor retroactively according to the sponsor’s requirements.


Reporting Federal Inquiries or Knowledge of Improper Foreign Influence

The UC Berkeley campus has a process for reporting: 1) federal agency communication regarding concerns about foreign influence in federally funded research; or, 2) campus knowledge of improper foreign influence.

Reporting Federal Inquiries or Knowledge of Improper Foreign Influence provides further information, a list of “triggering events,” and frequently asked questions. If you become aware of a “triggering event,” report it within 24 hours to the UC Berkeley Locally Designated Official.


Summary

There continue to be myriad articles, reports and conferences about foreign ties to U.S. researchers. Now more than ever it is important for PDs/PIs to be aware of University, State, and external sponsor requirements for engaging with foreign entities, researchers, and talent recruitment programs.

By ensuring that all covered personnel comply with the sponsor’s disclosure and reporting requirements, PDs/PIs will demonstrate a willingness to be transparent about their dealings with foreign entities and individuals.

Resources

Sponsored Projects

Federal Disclosure Related to Sponsored Projects on the SPO website has guidance on the following federal agencies:

Conflict of Interest

The Conflict of Interest Committee website includes information on disclosure requirements from:

Conflict of Commitment

See Conflict of Commitment for guidance.

  • Category I – prior approval required and count toward day limit
    • Teaching or research at another university
    • Assuming a managerial position at a company
    • Acting as a salaried employee outside the University
  • Category II – disclosure required
    • Consulting
    • Providing a workshop for industry

Export Control

See Export Control for guidance.

  • Basic compliance strategy – operate within the fundamental research exclusion
    • No publication restrictions
    • No citizenship restrictions
  • Shipment of tangible items may still require a license
  • Treasury sanctions and embargoes may apply to travel
  • Consult with the campus Export Control Officer with any questions.

Other Resources

Campus Town Hall:

Foreign Influence and Sponsored Projects presentation slides: