Policy on Foreign Government Sponsored or Affiliated Activities
1. Purpose
This policy provides an overview of Fermi Research Alliance, LLC’s (“FRA”) implementation of DOE Order 486.1A - Foreign Government Sponsored or Affiliated Activities (the “DOE Order”).
This policy is not a contract and is not intended to create any obligations on FRA. This policy may be terminated or changed by FRA at any time, with or without notice.
2. Scope
This policy applies to FRA employees performing work in any location under the FRA contract number DE-AC02-07CH11359 (“Prime Contract”) and all other Users and Affiliates performing research on the Fermi National Accelerator Laboratory site.
3. Applicability
The DOE Order applies to FRA employees as well as Users and Affiliates who are joint appointees, collaborators, Cooperative Research and Development Agreement (CRADA) or Strategic Partnership Project (SPP) participants, and subcontractors 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 (under the name of Policy on Foreign-Government Talent-Recruitment Programs) first went into effect on September 24, 2019, with respect to DOE Order 486.1. The policy was superseded and replaced with this policy when DOE Order 486.1A replaced DOE Order 486.1 in FRA’s prime contract. The policy was updated on February 11, 2022, and September 13, 2023.
5. Policy
It is FRA’s commitment and policy to maintain a warm, welcoming environment for its employees as well as users, affiliates, and others from around the world who contribute to and participate in Fermilab mission activities. This policy and DOE Order 486.1A are intended to ensure the continued flow of scientific and technical information consistent with DOE’s broad scientific mission, while also ensuring protection of U.S. competitive and national security interests and DOE program objectives; preventing potential conflicts of interest that might undermine the DOE research enterprise; and limiting unauthorized transfers of scientific and technical information.
DOE Order 486.1A prohibits FRA employees (wherever they work) from participating in a Foreign Government-Sponsored Talent Recruitment Program (FGTRP) of a foreign country of risk. The Order also restricts FRA employees from participating in other activities sponsored by or affiliated with a foreign country of risk, unless an exemption applies or is granted by DOE. The Order prohibits other persons from conducting Research & Development or Demonstration work on the Fermilab site (or in DOE leased space) if they are participants in a FGTRP of a foreign country of risk.
FRA complies with DOE Order 486.1A by: (1) undertaking due diligence to ensure FRA employees are not participants in a prohibited FGTRP or a restricted government sponsored or affiliated activity of a foreign country of risk; (2) requiring disclosure of activities covered by DOE Order 486.1A from FRA employees as well as Users and Affiliates who are performing Research & Development or Demonstration work on the Fermilab site (or in DOE leased space); (3) coordinating with the DOE cognizant Head of Field Element and Counter Intelligence regarding determinations under DOE Order 486.1A; (4) submitting required quarterly reports to DOE; and (4) determining whether to seek exemptions from DOE 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 Office of General Counsel (OGC) is responsible for this policy and overseeing implementing procedures including DOE-reporting requirements. The OGC 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 Counterintelligence, as appropriate, and preparing and submitting regular reports and situational exemption requests to DOE in accordance with DOE Order 486.1A. The OGC also is responsible for advising the Laboratory Director and Chief Research Officer on procedures and reportable matters. In addition, positive confirmations of relevant participation may require prompt reporting by the OGC to DOE and instruction to an employee to cease participation in the identified activities pending a determination under the order or an instruction to deny site access to a User or Affiliate.
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 the OGC for review.
Sr. Procurement Officer is responsible for flowing down these requirements to relevant subcontracts and collecting reports from applicable subcontractors.
Global Services is responsible for implementing disclosure questions as part of site access requests for non-employees requesting access to the Fermilab site (or DOE leased space) for purposes of performing research work on site.
8. Authorities
DOE Order 486.1A
FRA Prime Contract
9. Owner
The General Counsel 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 are communicated by the Office of General Counsel to all employees through Policies website posting. Periodic training of FRA employees on the requirements of the DOE Order and related Fermilab disclosure processes is provided by the Office of General Counsel through the Fermilab TRAIN system. The Office of General Counsel provides a webpage with information, including FAQs regarding the requirements of DOE O 486.1A.