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Standard Operating Procedure

Foreign Talent Programs

The Creating Helpful Incentives to Produce Semiconductors and Science Act of 2022 (CHIPS and Science Act, Public Law No. 117-167), signed into law on August 09, 2022, directs the White House Office of Science and Technology Policy (OSTP) to publish uniform guidelines for federal research agencies stating that covered individuals working on federally funded research projects

  1. must disclose if they are a party to a foreign talent recruitment program (FTRP) contract, agreement, or other arrangement; and
  2. are prohibited from participating in malign foreign talent recruitment programs (MFTRPs). The guidelines must also require recipient institutions to prohibit covered individuals participating in MFTRPs from working on federally funded research projects.

In response, the University added requirements in the Outside Activities and Conflicts Policy and created this Standard Operating Procedure to comply with applicable federal regulations.

Definitions

The below definitions are taken from the CHIPS and Science Act unless otherwise indicated. Additional definitions are located in the Outside Activities and Conflicts Policy.

Covered Individual

An individual who

  1. contributes in a substantive, meaningful way to the scientific development or execution of a research and development project proposed to be carried out with a research and development award from a federal research agency; and
  2. is designated as a covered individual by the federal research agency concerned.

Foreign Country of Concern

Means the People’s Republic of China, the Democratic People’s Republic of Korea, the Russian Federation, the Islamic Republic of Iran, or any other country determined to be a country of concern as determined by the Secretary of State. 

Foreign Talent Recruitment Program (FTRP)

The CHIPS and Science Act does not include a definition of an FTRP, instead directing OSTP to develop one. The University adopts the definition of “foreign government-sponsored talent recruitment program” in OSTP's National Security Presidential Memorandum-33 Implementation Guidance (Appendix: Definitions):

Effort organized, managed, or funded by a foreign government, or a foreign government instrumentality or entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of Federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to United States entities. Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

Malign Foreign Talent Recruitment Program (MFTRP)

The below definition of “malign foreign government-sponsored talent recruitment program” is as reflected in OSTP's National Security Presidential Memorandum-33 Implementation Guidance (Appendix: Definitions):

  1. Any program, position, or activity that includes compensation in the form of cash, in-kind compensation, including research funding, promised future compensation, complimentary foreign travel, things of non de minimis value, honorific titles, career advancement opportunities, or other types of remuneration or consideration directly provided by a foreign country at any level (national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated with a foreign country, whether or not directly sponsored by the foreign country, to the targeted individual, whether directly or indirectly stated in the arrangement, contract, or other documentation at issue, in exchange for the individual:
    1. Unauthorized Intellectual Capital Transfer: Engaging in unauthorized transfer of intellectual property, materials, data products, or other nonpublic information owned by a United States entity or developed with a federal research and development award to the government of a foreign country or an entity based in, funded by, or affiliated with a foreign country regardless of whether that government or entity provided support for the development of the intellectual property, materials, or data products;
    2. Recruitment: Being required to recruit trainees or researchers to enroll in such program, position or activity;
    3. Establishing Lab, Company or Taking Employment: Establishing a laboratory or company, accepting a faculty position; or undertaking any other employment or appointment in a foreign country or with an entity based in, funded by, or affiliated with a foreign country if such activities are in violation of the standard terms and conditions of a federal research and development award;
    4. Conflict of Commitment: Being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;
    5. Scientific/Funding Duplication: Through funding or effort related to the foreign talent recruitment program, being limited in the capacity to carry out a research and development award or required to engage in work that would result in substantial overlap or duplication with a Federal research and development award;
    6. Foreign Funding: Being required to apply for and successfully receive funding from the sponsoring foreign government’s funding agencies with the sponsoring foreign organization as the recipient;
    7. Prohibition on Acknowledgement: Being required to omit acknowledgement of the recipient institution with which the individual is affiliated, or the federal research agency sponsoring the research and development award, contrary to the institutional policies or standard terms and conditions of the federal research and development award;
    8. Disclosure Prohibitions: Being required to not disclose to the federal research agency or employing institution the participation of such individual in such program, position, or activity; or
    9. Conflict of Interest/Conflict of Commitment: Having a conflict of interest or conflict of commitment contrary to the standard terms and conditions of the federal research and development award; and
  2. A program that is sponsored by:
    1. A foreign country of concern or an entity based in a foreign country of concern, whether or not directly sponsored by the foreign country of concern;
    2. An academic institution on the list developed under section 1286(c)(8) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019; or
    3. A foreign talent recruitment program on the list developed under section 1286(c)(9) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.

The following are not considered malign foreign talent programs, unless such activities are funded, organized, or managed by an academic institution or a foreign talent recruitment program on the lists developed under paragraphs (8) and (9) of section 1286(c) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019:

  1. Making scholarly presentations and publishing written materials regarding scientific information not otherwise controlled under current law;
  2. Participation in international conferences or other international exchanges, research projects or programs that involve open and reciprocal exchange of scientific information, and which are aimed at advancing international scientific understanding and not otherwise controlled under current law;
  3. Advising a foreign student enrolled at an institution of higher education or writing a recommendation for such a student, at such student’s request.

University Pre-approval and Disclosure Responsibilities

Foreign Talent Recruitment Programs (“FTRPs”)

  1. Participation in an FTRP is considered an Outside Activity under the Outside Activities and Conflicts Policy. Therefore, all employees must submit an Outside Activity Approval Form at https://go.osu.edu/coi and receive approval from their unit prior to participating in an FTRP.
    1. Employees must include any contracts, agreements, and other pertinent documentation related to the FTRP with their Outside Activity Approval Form.
  2. Individuals that are not University employees are not required to submit an Outside Activity Approval Form prior to participating in outside activities.
  3. If an employee’s request to participate in an FTRP is approved by the University, and that employee is required to submit an annual Disclosure Form, the FTRP must also be disclosed on their Disclosure Form at https://go.osu.edu/coi.
  4. All researchers, regardless of role or University affiliation, must disclose their participation in an FTRP on their annual Disclosure Form.
    1. Researchers are required to update their Disclosure Form within thirty (30) days of acquiring or discovering new financial interests, engaging in new outside activities, or if there are changes regarding a previously reported activity (see Financial Conflict of Interest in Research SOP).

Malign Foreign Talent Recruitment Programs (“MFTRPs”)

  1. Researchers engaging in federally funded research are prohibited from participating in an MFTRP.
  2. For those individuals not engaged in federally funded research, participation in an MFTRP is subject to the same pre-approval and disclosure requirements as described above for FTRPs in II.A.1-4.
  3. Employees and researchers should immediately contact the below units if they are currently participating in, or have participated in an MFTRP during the last 12 months:
    1. Office of Research Compliance, Conflict of Interest Team: conflictinfo@osu.edu
    2. Office of Secure Research, International Engagement Team: intlresearchengagement@osu.edu
    3. Employee’s unit director, supervisor, or Chair

Federal Research Agency Disclosure and Certification

Foreign Talent Recruitment Programs (“FTRPs”)

  1. Researchers engaged in federally funded research are required to disclose current or pending participation in, or applications to, an FTRP to the federal agency per applicable federal research agency requirements. Requirements may include disclosure of the FTRP in the Biographical Sketch or Curriculum Vitae (CV) and/or in other/current and pending support documents.
  2. Federal research agencies may require implementation of mitigation strategies related to the FTRP before awarding a proposal to a recipient institution (e.g., Department of Defense Policy for Risk-Based Security Reviews of Fundamental Research). Mitigation strategies could include, but are not limited to, training, increased frequency of required reporting, and/or replacement of personnel on the project.

Malign Foreign Talent Recruitment Programs (“MFTRPs”)

  1. Federal research agencies may require certification that each covered individual is not a party to an MFTRP in the proposal submission, and annually thereafter for the duration of the award.
  2. Sponsored Programs groups throughout the University shall certify that covered individuals have been made aware of the requirement.

Acknowledgement

Covered individuals must be made aware of FTRP disclosure requirements and MFTRP prohibition. This information will be included, and acknowledgement will be required in the eCOI training.

Non-compliance

Individuals who violate the Outside Activities and Conflicts Policy and this SOP may be subject to an internal compliance review by the Office of Research. Additionally, individuals who violate federal research agency requirements may be subject to formal federal inquiry. These reviews may result in corrective or disciplinary action, up to and including termination or dismissal, in accordance with applicable policies, rules, collective bargaining agreements, or the Code of Student Conduct. Examples of violations include, but are not limited to:

  1. an employee failing to obtain pre-approval for participation in an FTRP or MFTRP,
  2. an employee or researcher failing to appropriately disclose participation in an FTRP or MFTRP to the University as required on their Disclosure Form (see Outside Activities and Conflicts Policy, General Procedure I.A.)
  3. a researcher engaged in federally funded research failing to disclose participation in an FTRP to the federal sponsor, per federal research agency requirements,
  4. a researcher engaged in federally funded research participating in an MFTRP, in violation of federal research agency requirements.

Additional Information