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 federal agencies are interested in PI behavior not ethnicity.

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, PIs and RAs 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. PIs and RAs 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.

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


PI Compliance Basics

  1. Make sure you disclose all of your 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. Ensure that all the Federal and State mandated financial conflict of interest (COI) disclosures required by your sponsor have been met.

    PIs applying for funding from sponsors that have COI requirements must 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. Determine 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. Disclose all current and pending support and affiliations, whether paid, unpaid, domestic or foreign, in your sponsored research proposals as required by the federal sponsor.

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

Below is a summary of key agencies that fund research activities at UC Berkeley and their specific guidance related to foreign influence and reporting obligations.


National Institutes of Health (NIH)

Other Support: NIH requires that all senior key personnel devoting measurable effort to the project disclose all “other support” at the JIT stage. The PI also must notify NIH of any substantive changes to these disclosures up to the time of award and any changes in in the active other support of senior/key personnel when submitting RPPRs.

NIH defines “Other Support” as resources made available to a researcher in support of and/or related to all of their research endeavors, regardless of whether or not the resources have monetary value. This includes resources and/or financial support from Berkeley and resources and/or financial support from all foreign and domestic entities, including but not limited to, financial support for laboratory personnel, and provision of high-value materials that are not freely available (e.g., biologics, chemical, model systems, technology, etc.).

Note: Other support does not include training awards, prizes, or gifts. Other Support also is not specifically requested for Program Directors, training faculty, and other individuals involved in the oversight of training grants since applicable information is collected in other sections of a training grant application. It is also not requested for individuals categorized as Other Significant Contributors.

See the NIH guidance on what to disclose to NIH about Senior/Key Personnel on applications and awards.

Foreign Components: NIH and other PHS agencies also require PIs to indicate at the proposal stage if any significant scientific element or segment of the project will take place outside of the United States, either by the recipient or by a researcher employed by a foreign organization, whether or not grant funds are expended. This is considered a “foreign component.”

If a foreign component is to be involved, the PI must attach a justification to the proposal describing why the facilities or other aspects of the proposed project are more appropriate than a domestic setting. If the PI adds a foreign component after NIH makes the award, NIH prior approval will be required. See: NIHGPS, Section 8.1.2, Prior Approval Requirements. As stated above, a foreign component involves a “significant” aspect of the project. NIH does not specifically define what is meant by “significant.” However, when in doubt, always disclose. NIH has provided the following examples of a reportable foreign component:

  • Collaborations with investigators at a foreign site anticipated to result in co-authorship
  • Use of facilities or instrumentation at a foreign site
  • Receipt of financial support or resources from a foreign entity

Note: Foreign travel for consultation is not considered a foreign component. (See NIH Grants Policy Statement: 16 Grants to Foreign Organizations, International Organizations, and Domestic Grants with Foreign Components).


National Science Foundation (NSF)

Cooperative Work with Foreign Organizations: NSF rarely provides direct funding support to foreign organizations. However, in cases where the proposer considers a foreign organization’s involvement to be essential to the project (e.g., through subawards or consultant arrangements), the proposer must explain why local support is not feasible and why the foreign organization can carry out the activity more effectively than a domestic entity.

In addition, the proposed activity must demonstrate how the foreign organization is essential to the proposed project and how the foreign organization will contribute to science and engineering education, training or research opportunities to the U.S.

Such information must be included in the project description section of the proposal. The box for “Funding of a Foreign Organization, including through use of a subaward or consultant arrangement” must also be checked on the Cover Sheet if the proposal includes funding for a foreign organization.

Current and Pending Support: Since 1978, NSF has required senior project personnel on proposals to disclose all sources of support, both foreign and domestic under “current and pending” support. NSF uses the information submitted in the current and pending support section of a proposal to assess the capacity of the individual to carry out the research as proposed as well as to help assess any potential overlap/duplication with the project being proposed. It is very important that this information be complete and correct.

A renewed effort within NSF is now underway to ensure that existing requirements to disclose current and pending support information are known, understood, and followed. The following is an overview of NSF requirements for reporting current and pending support:

  • Current and pending support information must be separately provided for each individual designated as senior personnel on the proposal being submitted.
  • Current and pending support includes all resources (see the link to NSF’s FAQs below for exclusions) made available to an individual in support of and/or related to all of the individual’s research efforts, regardless of whether or not they have monetary value.
  • Current and pending support includes in-kind contributions such as office/laboratory space, equipment, supplies, employees, students even if these contributions are not intended for use on the project/proposal being proposed to NSF.
  • Current and pending support information must be provided for the project being proposed to NSF, for ongoing projects, and for any proposals currently under consideration from whatever source, irrespective of whether such support is provided through the proposing organization or is provided directly to the individual.

For more information, see NSF Frequently Asked Questions on Current and Pending Support PAPPG (NSF 20-1).


Department of Defense (DOD)

DOD Notices of Funding Opportunities (NFOs) pertaining to research and research-related educational activities require proposers to submit the following information for all key personnel in the Senior Key Person Profile whether or not the individuals’ efforts under the project are to be funded by the DOD:

  • A list of all current projects the individual is working on, in addition to any future support the individual has applied to receive, regardless of the source.
  • Title and objectives of the other research projects.
  • The percentage per year to be devoted to the other projects.
  • The total amount of support the individual is receiving in connection to each of the other research projects or will receive if other proposals are awarded.
  • Name and address of the agencies and/or other parties supporting the other research projects.
  • Period of performance for the other research projects.

This information will be used to support protection of intellectual property, controlled information, key personnel, and information about critical technologies relevant to national security. Additionally, this information will be used to limit undue influence, including foreign talent programs, by countries that desire to exploit United States’ technology within the DOD research, science and technology, and innovation enterprise.

Note: This requirement applies only to DOD instruments supporting research and research-related educational activities. For all other types of grants, the capture of the above information is optional.


U.S. Department of Energy (DOE)

Campus researchers funded under DOE contracts for research and development (R&D) work performed or partially performed on or at a DOE or National Nuclear Security Administration (NNSA) site or facility are subject to Order 486.1A. This order was issued in June of 2019, revised on September of 2020, and prohibits DOE contractors from participating in foreign government talent recruitment programs (FGTRP) and restricts other Foreign Government Sponsored or Affiliated Activities of a Foreign Country of Risk. The following are currently considered Foreign Countries of Risk (subject to change): Russia, Iran, China, and North Korea.

When Order 486.1A is referenced in LBNL or other DOE Lab agreements, SPO will send an email to the PI with a link to a Foreign Government Talent Recruitment Program (FGTRP) Certification form. The PI and each member of the PI’s project team must complete this form. It is the PI’s responsibility to submit all completed forms to UC Berkeley’s COI Team (coi-team@berkeley.edu) The COI Team then will submit this information to the DOE Lab within the required time frame.

Campus researchers with joint appointments are required to disclose such relationships and other foreign government affiliated activities through LBNL’s outside activities program.

Note: This Order currently does not apply to non-DOE contractor employees working under a User Facility Agreement.


Quick Agency Comparison Chart

Sponsor Who must disclose? What must be disclosed? When to disclose? Other
NIH All senior key personnel devoting any measurable effort to the project Other Support: Resources made available to a researcher in support of and/or related to all of their research endeavors, regardless of whether or not the resources have monetary value. Disclosures should occur at the JIT stage and up to the time of award.
Also, any changes in active other support should be reported when submitting RPPRs.
Effective May 25, 2021: NIH will require copies of contracts, grants or any other agreement specific to senior/key personnel foreign appointments and/or employment with a foreign institution for all foreign activities and resources that are reported in Other Support. If the contracts, grants or other agreements are not in English, recipients must provide translated copies. See the FAQs provided by NIH for further guidance.

PIs or other Senior/Key personnel on an active NIH grant that fail to disclose Other Support information outside of Just-in-Time or the RPPR, as applicable, should notify SPO as soon as it becomes known.
  Foreign Components: Any significant scientific element or segment of the project will take place outside of the United States, either by the recipient or by a researcher employed by a foreign organization, whether or not grant funds are expended. If a foreign component is to be involved, the PI must attach a justification to the proposal describing why the facilities or other aspects of the proposed project are more appropriate than a domestic setting.
If the PI adds a foreign component after NIH makes the award, NIH prior approval will be required.
NIH does not define what is meant by “significant.” NIH has provided the following examples of a reportable foreign component:
  • Collaborations with investigators at a foreign site anticipated to result in co-authorship
  • Use of facilities or instrumentation at a foreign site
  • Receipt of financial support or resources from a foreign entity
NSF All senior project personnel All resources (both foreign and domestic) made available to an individual in support of and/or related to all of the individual’s research efforts, regardless of whether or not they have monetary value.
Includes support for ongoing projects and for any proposals currently under consideration from whatever source, irrespective of whether such support is provided through the proposing organization or is provided directly to the individual.
If the in-kind contribution is not intended for use on the project/proposal being proposed to NSF but has an associated time commitment, the information must be included as part of the current and pending support section of the proposal.
If the in-kind contribution is intended for use on the project/proposal being proposed to NSF, the information must be included as part of the Facilities, Equipment and Other Resources section of the proposal and need not be replicated in the individual’s current and pending support submission.
NSF defines “in-kind support” as an item or service given with the expectation of an associated time commitment; does not include gifts.
DOD Persons identified as key personnel in the Senior/Key Person Profile (Expanded) form that includes a section for agencies to collect Current and Pending Support efforts for identified persons.
  • A list of all current projects the individual is working on, in addition to any future support the individual has applied to receive, regardless of the source.
  • Title and objectives of the other research projects.
  • The percentage per year to be devoted to the other projects.
  • The total amount of support the individual is receiving in connection to each of the other research projects or will receive if other proposals are awarded.
  • Name and address of the agencies and/or other parties supporting the other research projects.
  • Period of performance for the other research projects.
Only in response to DOD Notices of Funding Opportunities (NFOs) pertaining to research and research-related educational activities.  
DOE DOE employees and contractor personnel (including individuals on DOE-sponsored programs at the University if they come on to a DOE site to perform R&D work under a DOE contract).
It does not apply to university personnel funded by DOE Grants & Cooperative Agreements or flow thru awards from DOE Grants & Cooperative Agreements.
Participation in Foreign Government Country of Risk Talent Recruitment Programs regardless of where the work is performed. Applies when a clause requiring reporting of participation in Foreign Government Sponsored or Affiliated Activities is included in the DOE agreement and the work is R&D and the work will be performed or partially performed on or at a DOE or National Nuclear Security Administration (NNSA) site or facility. Definition of a FGTRP: An effort directly or indirectly organized, managed, or funded by a foreign government to recruit science and technology professionals or students (regardless of citizenship or national origin, and whether having a full-time or part-time position).
Foreign Countries at Risk currently include: Russia, China, Iran, and North Korea.

 


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: 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.


Summary

There continue to be myriad articles, reports and conferences about foreign ties to US researchers. Now more than ever it is important for PIs and the RAs that assist PIs with sponsor requirements at the pre- and post-award stages to be aware of University, State, and external sponsor requirements for engaging with foreign entities, researchers, and talent recruitment programs.

By complying with all such disclosure and reporting requirements, PIs will demonstrate a willingness to be transparent about their dealings with foreign entities and individuals and reduce the likelihood of being accused of making false statements and/or fraud.


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

Foreign Influence and Sponsored Projects presentation slides: