Policy on Foreign Government Sponsored or Affiliated Activities
1. Purpose
The purpose of this policy is to declare, communicate, and ensure Fermi Research Alliance, LLC’s (“FRA”) compliance with DOE Order 486.1A - Foreign Government Sponsored or Affiliated Activities that was added to the FRA Prime Contract on September 3, 2020 and replaced DOE Order 486.1 Department of Energy Foreign Government Talent Recruitment Programs (“DOE Order”).
This policy ensures the continued flow of scientific and technical information consistent with the Department of Energy’s (DOE) broad scientific mission, while also ensuring protection of U.S. competitive and national security interests and DOE program objectives; and limiting unauthorized transfers of scientific and technical information.
2. Scope
This policy applies to FRA employees and all other activities and personnel performing work under the FRA contract number DE-AC02-07CH11359 (“Prime Contract”).
3. Applicability
The DOE Order addresses FRA employees as well as joint appointees, collaborators, Cooperative Research and Development Agreement (CRADA) or Strategic Partnership Project (SPP) agreements, SPP participants, and subcontractors who are conducting Research & Development or Demonstration work on the Fermilab site (or in other DOE leased space). This policy applies specifically to those categories within the Fermilab community. Unless researchers also fall within another covered category, the DOE Order does not apply to: (1) Researchers working at Fermilab’s DOE designated User Facility, which is the Accelerator Complex, under a Non-Proprietary User Agreement; (2) In-kind support under a fundamental research collaboration for the sole purpose of co-authorship to be made publicly available; or (3) Support related specifically to implementing a DOE program-sponsored international collaboration project and within the scope of a DOE-level or U.S. Government-level bilateral or multilateral international agreement.
4. Effective Date and Date Reviewed/Updated
This policy went into effect on September 24, 2019 with respect to DOE Order 486.1, now superseded and replaced. This update this is replacing the policy known as the Policy on Foreign-government talent-recruitment Programs in accordance with DOE Order 486.1A and is effective on February 11, 2022.
5. Policy
It is FRA’s commitment to maintain a warm, welcoming environment for its workers and those from around the world to contribute most effectively to the Fermilab mission.
DOE Order 486.1A prohibits participation in Foreign Government-Sponsored Talent Recruitment Programs (FGTRP) of a foreign country of risk by persons conducting Research & Development or Demonstration work on the Fermilab site (or in DOE leased space) and restricts other FRA employee activities that are sponsored by or affiliated with a foreign country of risk. FRA shall comply with DOE Order 486.1A by undertaking due diligence to: (1) ensure its employees are not participants in a FGTRP or other government sponsored or affiliated activity of a foreign country of risk; (2) obtain disclosure of activities covered by DOE Order 486.1A from FRA employees, joint appointees, collaborators, or subcontractors who are performing Research & Development or Demonstration work on the Fermilab site (or in DOE leased space); (3) coordinate with the DOE cognizant field office authority and Counter Intelligence and submit required quarterly reports to DOE; and (4) determine whether to seek exemptions for any disclosed activities.
By undertaking this due diligence, reporting, and monitoring for real or perceived conflicts of interest for its employees, collaborators, joint appointees, and applicable subcontractors, FRA provides additional mitigation of risks to U.S. interests and unauthorized transfers of scientific and technical information.
6. Definitions
Demonstration Work is the performance of work that involves a project designed to determine the technical feasibility and economic potential of a technology on either a pilot or prototype scale.
Fermilab is the physical site and property that is the Fermi National Accelerator Laboratory.
Fermi Research Alliance, LLC (FRA) is the operator and manager of the Fermi National Accelerator Laboratory under Department of Energy Prime Contract No. DE-AC02-07CH11359 and is the principal employer of personnel working at Fermilab.
Foreign Country of Risk is any foreign country determined to be of risk by DOE communicated through the DOE Fermi Site Office to the Office of the Fermilab Director. For purposes of the DOE Order, a Foreign Country includes country, regional, or local level of foreign governments, national laboratories, universities, or business enterprises of a Foreign Country of Risk.
Foreign Government-Sponsored Talent-Recruitment Program (FGTRP) A “Foreign government-sponsored talent recruitment program” includes any 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) 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 physically relocate to the foreign state for the above purpose. Some programs allow for or encourage continued employment at U.S. 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 U.S. entities. “Compensation” could take many forms including cash, research funding, complimentary foreign travel, honorific titles/awards, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.
Foreign Government Sponsored or Affiliated Activity includes activities directly or indirectly involving a foreign country of risk entity. These activities include employment, participation in programs, positions and appointments (both domestic and foreign) and other support. Other support includes funding or income from all of the following types of sources: contractual and non-contractual, direct and indirect, current and pending, private and public, and foreign and domestic. For researchers, “other support” also includes all foreign resources made available, directly or indirectly, in support of and/or related to all of their professional R&D efforts, including resources provided directly to the individual rather than through the research institution, and regardless of whether or not resources have monetary value (e.g., even if the support received is only in-kind, such as office/laboratory space, equipment, supplies, or employees). This support includes resource and/or financial support from all foreign and domestic entities, including but not limited to, gifts, financial support for laboratory personnel, and participation of student and visiting researchers supported by other sources of funding. This further includes compensation, for example, current or promises of future: grants, awards, funding, scholarship, appointment, sabbatical, travel, university directed funding, and honoraria. This also includes, for example, the work of post docs or graduate students not charged to research, but are funded by foreign entities.
On-Site Work is work within the scope of an applicable FRA employee, Non-Proprietary User Agreement, subcontract, CRADA or SPP, or joint appointment agreement at any level or duration performed at the Fermilab site/facility, including DOE-leased space.
R&D Work is the performance of work that involves efforts and scientific and technological work of scientists, researchers, and engineers involving research activities, both basic and applied, and all development activities. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research and development activities and where such activities are not included in the instruction function.
7. Responsibilities
The Chief of Staff in the Office of the Laboratory Director is responsible for this policy and overseeing implementing procedures including DOE-reporting requirements.
The Office of General Counsel is responsible for reviewing disclosures and, when positive indications (both self-reported and non-self-reported) of participation in a FGTRP or other Foreign Government Sponsored or Affiliated Activities of a foreign country of risk are received, confirming reportability. The OGC is responsible for coordinating with the DOE Site Office and Counter Intelligence, as appropriate, and preparing and submitting reports and exemption requests to DOE in accordance with DOE Order 486.1A. The OGC also is responsible for advising the Chief of Staff and other senior Laboratory officials on procedures and reportable matters. The OGC is responsible for providing regular status reports to DOE as part of the Order’s Contract Requirements Documents. In addition, positive confirmations of relevant participation may require prompt reporting by the OGC to DOE and instructions to cease the activities
The Chief Human Resources Officer is responsible for maintaining the Outside Employment or Association and Foreign Government Support Disclosure forms in the Lab’s Human Capital Management system and providing relevant data to Office of General Counsel for review.
Sr. Procurement Officer is responsible for flowing down these requirements to relevant subcontracts and collecting reports from applicable subcontractors.
Campus Access and Experience Manager is responsible for implementing disclosure requirements as indicated by the Chief of Staff or delegate as part of the Fermilab site badging process for persons performing work on site.
8. Authorities
DOE Order 486.1A
FRA Prime Contract
9. Owner
The Chief of Staff in the Office of the Director is the owner of this policy.
10. Review Cycle
This policy shall be reviewed every three years.
11. Communication Plan
The requirements of this policy shall be communicated by the Office of the Directorate to all employees, and periodic training shall be provided to Management System Owners and Chiefs/Division Heads/Section Heads/Project Directors. This policy shall be available in the Fermilab policy database. The Chief of Staff in the Office of the Director is responsible for the communication of this policy.