Undue Foreign Influence

SDSU 4:9 Conflicts of Interest Reporting and Approval Policy requires certain conflicts of interest and commitment disclosures and prior approval of specified private practice, private consulting, employment with entities outside of the university and other related activity. Federal regulations also govern the disclosure and management of conflicts of interest. Federal provisions applicable to objectivity in research and financial conflicts of interest require certain disclosures. University employees are required to review and comply with all South Dakota Board of Regents provisions which control this policy and its procedures, this implementing policy and its procedures, and controlling laws, as applicable.

Research security and foreign influence is an issue that continues to receive increased attention from the U.S. government and all federal agencies sponsoring research at SDSU. Understanding and dealing with such challenges and related issues will help ensure responsible, effective and productive research collaborations.

According to the NSPM-33, Foreign Government-Sponsored Talent Recruitment Program is defined as “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).”

Over the past decade, the Chinese government has refined its centrally organized foreign talent recruitment plans into a strategy to “use talent to strengthen the country” by targeting the specific technology sectors previously discussed.

Foreign Government-Sponsored Talent Recruitment Programs raise concern regarding national security, conflicts of interest, conflicts of commitment and intellectual property theft.

As stated by the NSPM-33 Implementation Guidance, research security refers to safeguarding the U.S. research enterprise against the misappropriation of research and development to the detriment of national or economic security, related violations of research integrity, and foreign government interference.

There is an increasing need to protect federally-funded research from undue foreign influence, including exploitation of the open university research environment and intellectual property theft.

Research security mitigates risk by protecting research from:

• Theft
• Misuse
• Unauthorized access
• Misappropriation

Research security protects research at all stages of maturity, including:

• Initial ideas
• Peer-reviewed journal papers
• Fully developed intellectual property

If there is a breach of research security, researchers and the SDSU could lose:

• Credit for ideas
• Credit for data
• Opportunities for patents, licenses and partnerships

If a security breach has occurred at SDSU, access to future funding may be jeopardized.

The term malign foreign talent recruitment program is defined as:

(A) Any program, position or activity that includes any of the following compensation in the form of cash or in-kind compensation including:

• Research funding
• Promised future compensation
• Complimentary foreign travel
• Things of non de minimis value
• Honorific titles
• Career advancement opportunities

Or any 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 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. engaging in the 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. being required to recruit trainees or researchers to enroll in such program, position or activity;
3. 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. being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;
5. 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. 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. being required to omit acknowledgment 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. 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. having a conflict of interest or conflict of commitment contrary to the standard terms and conditions of the federal research and development award; and

(B) 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; namely
   • the People's Republic of China,
   • the Democratic People's Republic of Korea (North Korea),
   • the Russian Federation,
   • the Islamic Republic of Iran,
   • or any other country determined to be a country of concern by the secretary of state.
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 (10 U.S.C. 2358 note; ¹ Public Law 115–232); 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 (10 U.S.C. 2358 note; Public Law 115–232).

For engagement in Foreign Talent Recruitment Programs or activities potentially associated with a Foreign Talent Recruitment Program:

• Participation in any type of FTRP is considered an Outside Employments, Occupations or Endeavors. Therefore, must be disclosed on the Private Practice, Private Consulting and Outside Employment Disclosure and Request for Prior Approval form within 30 days of engaging in the new or updated outside activities and reverified annually thereafter. Changes or updates are required within 30 days of acquiring or discovering new financial interests, engaging in new outside activities, or if there are changes regarding a previously reported activity.

All SDSU employees must comply with funding sponsor policies, disclosure requirements and certifications regarding other endeavors for profit that relate to their academic expertise and foreign talent recruitment programs.

• Disclosure Requirements
  • FTRP: SDSU employees engaged in federally funded research are required to disclose participation in, or applications to, a FTRP in a biographical sketch or curriculum vitae and/or in other current and pending support documents, depending on agency requirements.
• MFTRP: Federal agencies may require certification that each covered individual is not a party to an MFTRP in the proposal submission or through just-in-time requests, and annually thereafter for the duration of the award. For most agencies, this will be required as part of the biographical sketch or curriculum vitae.

In accordance with 4.9 Conflict of Interest Reporting and Approval policy, you are required to disclose your participation in any foreign talent recruitment program via SDSU's annual conflict of interest disclosure.

SDSU requires training courses of all personnel, including researchers, faculty, staff and students involved in research. The following training courses must be completed prior to research and must also be maintained no less than once every two years.

• Financial Conflicts of Interest: Overview, Investigator Responsibilities and COI Rules (COI-Basic) (ID 15070)
• Conflicts of Commitment and Conscience (COI-Basic) (ID 15073)

• Anyone who initiates, reviews, approves, processes or records foreign gifts or contracts.
• Anyone who assists with foreign gifts or contracts.
• College, unit, department and central administrators.
• Faculty and staff soliciting gifts, sponsored awards or revenue-generating activities.
• Individuals responsible for university subsidiaries.

South Dakota State University must submit affirmative reports on a semiannual basis for any gifts from and contracts with a foreign source that, alone or combined, are valued at $50,000 or more in a calendar year.

SDSU must report any gifts or contracts received from a foreign source regardless of the value.

“Foreign source” means:

1. A foreign government, including an agency of a foreign government.
2. A legal entity, governmental or otherwise, created solely under the laws of a foreign state or states.
3. An individual who is not a citizen or a national of the United States or a trust territory or protectorate thereof.
4. An agent, including a subsidiary or affiliate of a foreign legal entity, acting on behalf of a foreign source.

SDSU must also report funds received by “intermediaries.”

“[A]n intermediary may be a legal entity other than an institution that receives a gift originating from or enters into a contract with a foreign source and then passes to an institution part or all of the benefit of the gift or contract with the foreign source.”

An intermediary need not be an “institution” or “fall under the direct control of an institution,” but “may operate under the auspices of, or on behalf of, an institution, which is when an entity is acting as a representative or agent of the institution and thus in furtherance of the institution’s interests.”

Once an entity meets the definition of an intermediary, then there is a rebuttable presumption that money received by an intermediary is for the benefit of the institution.

Example from DOE Guidance

An Institution of Higher Education establishes, manages and operates a laboratory off campus grounds to conduct scientific research. In some instances, laboratory employees may even be treated as employees of the institution. If a foreign source were to contract with the laboratory, for purposes of conducting scientific research, and the contract were valued at $50,000 or more, then the institution would be required to report the contract.

"Gift" is any gift of money or property.

"Contract" is any agreement for the acquisition by purchase, lease or barter of property or services by the foreign source for the direct benefit or use of either of the parties.

"Restricted or conditional gift or contract" is any endowment, gift, grant, contract, award, present or property of any kind that includes provisions regarding:

1. The employment, assignment or termination of faculty.
2. The establishment of departments, centers, research or lecture programs or new faculty positions.
3. The selection or admission of students.
4. The award of grants, loans, scholarships, fellowships or other forms of financial aid restricted to students of a specified country, religion, sex, ethnic origin or political opinion.

• Sponsored program agreements – grants or contracts related to research, grants or contracts for other sponsored activity or membership agreements
• Research-related field trial grants
• Clinical trial agreements
• Licensing agreements, intellectual property license fees
• Material transfer agreements
• Product testing agreements
• Conference sponsorships
• Gifts — including scholarships, noncash in-kind donations, transfers of cash, investments, royalty rights or other assets, or cancellation of a liability
• Institutional and academic collaborations
• Student sponsorship agreement where payment is made directly to SDSU

Beginning in 1986, Institutions of Higher Education must submit reports on a semiannual basis:

• Jan. 31 for reportable transactions occurring between July 1 and Dec. 31, and July 31 for reportable transactions occurring between Jan. 1 and June 30 of the reporting year.