Part C—Research Security

§19231. Requirements for foreign talent recruitment programs

(a) Purpose

The purpose of this part is to direct actions to prohibit participation in any foreign talent recruitment program by personnel of Federal research agencies and to prohibit participation in a malign foreign talent recruitment program by covered individuals involved with research and development awards from those agencies.

(b) Guidance

Not later than 180 days after August 9, 2022, the Director of the Office of Science and Technology Policy, in coordination with the interagency working group established under section 1746 of the National Defense Authorization Act for Fiscal Year 2020 (42 U.S.C. 6601 note; Public Law 116–92), shall publish and widely distribute a uniform set of guidelines for Federal research agencies regarding foreign talent recruitment programs. Such policy guidelines shall—

(1) prohibit all personnel of each Federal research agency, including Federal employees, contract employees, independent contractors, individuals serving under the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4701 et seq ¹ ), Visiting Scientist, Engineering, and Educator appointments, and special government employees other than peer reviewers, from participating in a foreign talent recruitment program;

(2) as part of the requirements under section 6605 of this title, require covered individuals to disclose if such individuals are a party to a foreign talent recruitment program contract, agreement, or other arrangement;

(3) prohibit research and development awards from being made for any proposal in which a covered individual is participating in a malign foreign talent recruitment program; and

(4) to the extent practicable, require recipient institutions to prohibit covered individuals participating in malign foreign talent recruitment programs from working on projects supported by research and development awards.

(c) Definition of foreign talent recruitment programs

As part of the guidance under subsection (b), the Director of the Office of Science and Technology Policy shall define and describe the characteristics of a foreign talent recruitment program.

(d) Implementation

Not later than one year after August 9, 2022, each Federal research agency shall issue a policy utilizing the guidelines under subsection (b).

(e) Consistency

The Director of the Office of Science and Technology Policy shall ensure that the policies issued by the Federal research agencies under subsection (d) are consistent to the greatest extent practicable.

(Pub. L. 117–167, div. B, title VI, §10631, Aug. 9, 2022, 136 Stat. 1664.)

Editorial Notes

References in Text

The Intergovernmental Personnel Act of 1970, referred to in subsec. (b)(1), is Pub. L. 91–648, Jan. 5, 1971, 84 Stat. 1909, which is classified principally to chapter 62 (§4701 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 4701 of this title and Tables.

¹ So in original. Probably should be followed by a period.

§19232. Malign foreign talent recruitment program prohibition

(a) In general

Not later than 24 months after August 9, 2022, each Federal research agency shall establish a policy that, as part of a proposal for a research and development award from the agency—

(1) each covered individual listed in such proposal certify that each such individual is not a party to a malign foreign talent recruitment program in the proposal submission of each such individual and annually thereafter for the duration of the award; and

(2) each institution of higher education or other organization applying for such an award certify that each covered individual who is employed by such institution of higher education or other organization has been made aware of the requirements under this section and complied with the requirement under paragraph (1).

(b) Stakeholder input

In establishing a policy under subsection (a), Federal research agencies shall publish a description of the proposed policy in the Federal Register and provide an opportunity for submission of public comment for a period of not more than 60 days.

(c) Compliance with existing law

Each Federal research agency and recipient shall comply with title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) in the establishment of policies pursuant to under ¹ subsection (a).

(d) International collaboration

Each policy developed under subsection (a) shall not prohibit, 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 (10 U.S.C. 4001 note; Public Law 115–232)—

(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; and

(4) other international activities determined appropriate by the Federal research agency head or designee.

(e) Limitation

The certifications required under subsection (a) shall not apply retroactively to research and development awards made or applied for prior to the establishment of the policy by the Federal research agency.

(f) Training

Each Federal research agency shall ensure that, as a requirement of an award from each such agency, recipient institutions provide training on the risks of malign foreign talent recruitment programs to covered individuals employed at such institutions, including those individuals who are participating in activities described in subsection (d).

(Pub. L. 117–167, div. B, title VI, §10632, Aug. 9, 2022, 136 Stat. 1665.)

Editorial Notes

References in Text

The Civil Rights Act of 1964, referred to in subsec. (c), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VI of the Act is classified generally to subchapter V (§2000d et seq.) of chapter 21 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables.

¹ So in original.

§19233. Review of contracts and agreements

(a) In general

In addition to existing authorities for preventing waste, fraud, abuse, and mismanagement of Federal funds, each Federal research agency shall have the authority to—

(1) require, upon request, the submission to such agency, by an institution of higher education or other organization applying for a research and development award, of supporting documentation, including copies of contracts, grants, or any other agreement specific to foreign appointments, employment with a foreign institution, participation in a foreign talent recruitment program and other information reported as current and pending support for all covered individuals in a research and development award application;

(2) require such institution of higher education or other organization to review any documents requested under paragraph (1) for compliance with the Federal research agency's award terms and conditions, including guidance on conflicts of interest and conflicts of commitment; and

(3) upon receipt and review of the information provided under paragraph (1) and in consultation with the institution of higher education or other organization submitting such information, initiate the substitution or removal of a covered individual from a research and development award, reduce the award funding amount, or suspend or terminate the award if the agency head determines such contracts, grants, or agreements include obligations that—

(A) interfere with the capacity for agency-supported activities to be carried out; or

(B) create duplication with agency-supported activities.

(b) Limitations

In exercising the authorities under subsection (a), each Federal research agency shall—

(1) take necessary steps, as practicable, to protect the privacy of all covered individuals and other parties specified in the documentation submitted under paragraph (1) of such subsection;

(2) endeavor to provide justification for requests for supporting documentation made under such paragraph;

(3) require that allegations be proven by a preponderance of evidence; and

(4) as practicable, afford subjects an opportunity to provide comments and rebuttal and an opportunity to appeal before final administrative action is taken.

(Pub. L. 117–167, div. B, title VI, §10633, Aug. 9, 2022, 136 Stat. 1666.)

§19234. Research security training requirement for Federal research award personnel

(a) Annual training requirement

(1) In general

Not later than 12 months after August 9, 2022, each Federal research agency shall establish a requirement that, as part of an application for a research and development award from the agency—

(A) each covered individual listed on the application for a research and development award certify that each such individual has completed within one year of such application research security training that meets the guidelines developed under subsection (b); and

(B) each institution of higher education or other organization applying for such an award certify that each covered individual who is employed by such institution or organization and listed on the application has completed such training.

(2) Consistency

The Director of the Office of Science and Technology Policy shall ensure that the training requirements established by Federal research agencies pursuant to paragraph (1) are consistent.

(b) Training guidelines

The Director of the Office of Science and Technology Policy, acting through the National Science and Technology Council and in accordance with the authority provided under section 1746(a) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92; 42 U.S.C. 6601 note), shall, taking into consideration stakeholder input, develop guidelines for institutions of higher education and other organizations receiving Federal research and development funds to use in developing their own training programs to address the unique needs, challenges, and risk profiles of such institutions and other organizations, including adoption of security training modules developed under subsection (c), to ensure compliance with National Security Presidential Memorandum–33 (relating to strengthening protections of the United States Government-supported research and development against foreign government interference and exploitation) or any successor documents.

(c) Security training modules

(1) In general

Not later than 90 days after August 9, 2022, the Director of the Office of Science and Technology Policy, in coordination with the Director of the National Science Foundation, the Director of the National Institutes of Health, the Secretary of Energy, and the Secretary of Defense, and in consultation with the heads of relevant Federal research agencies, shall enter into an agreement or contract with a qualified entity for the development of online research security training modules for the research community and participants in the United States research and development enterprise to ensure compliance with National Security Presidential Memorandum–33 or successor documents, including modules—

(A) focused on cybersecurity, international collaboration and international travel, foreign interference, and rules for proper use of funds, disclosure, conflict of commitment, and conflict of interest; and

(B) tailored to the unique needs of—

(i) covered individuals;

(ii) undergraduate students, graduate students, and postdoctoral researchers; and

(iii) applicants for awards under the SBIR and STTR programs (as such terms are defined in section 638(e) of title 15.

(2) Stakeholder input

Prior to entering into the agreement under paragraph (1), the Director of the Office of Science and Technology Policy shall seek input from academic, private sector, intelligence, and law enforcement stakeholders regarding the scope and content of security training modules, including the diversity of needs across institutions of higher education and other recipients of different sizes and types, and recommendations for minimizing administrative burden on recipients and researchers.

(3) Development

The Director of the Office of Science and Technology Policy shall ensure that the entity referred to in paragraph (1)—

(A) develops security training modules that can be adapted and utilized across Federal research agencies; and

(B) develops and implements a plan for regularly updating such modules as needed.

(Pub. L. 117–167, div. B, title VI, §10634, Aug. 9, 2022, 136 Stat. 1667.)

§19235. Person or entity of concern prohibition

No person published on the list under section 1237(b) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105–261; 50 U.S.C. 1701 note) or entity identified under section 1260h ¹ of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (10 U.S.C. 113 note; Public Law 116–283) may receive or participate in any grant, award, program, support, or other activity under—

(1) the Directorate established in part G of subchapter III of this chapter;

(2) section 3722a(b)(1) of title 15, as added by section 10621; or

(3) the Manufacturing USA Program, as improved and expanded under part D of subchapter II of this chapter.

(Pub. L. 117–167, div. B, title VI, §10636, Aug. 9, 2022, 136 Stat. 1669.)

Editorial Notes

References in Text

Section 10621, referred to in par. (2), means section 10621 of Pub. L. 117–167.

Part D of subchapter II of this chapter, referred to in par. (3), was in the original "subtitle E of title II of this division", meaning subtitle E (§§10261–10263) of title II of div. B of Pub. L. 117–167, which is classified principally to part D of subchapter II of this chapter. For complete classification of subtitle E to the Code, see Tables.

¹ So in original. Probably should be "1260H".

§19236. Nondiscrimination

In carrying out requirements under this part, each Federal research agency shall ensure that policies and activities developed and implemented pursuant to this part are carried out in a manner that does not target, stigmatize, or discriminate against individuals on the basis of race, ethnicity, or national origin, consistent with title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

(Pub. L. 117–167, div. B, title VI, §10637, Aug. 9, 2022, 136 Stat. 1669.)

Editorial Notes

References in Text

The Civil Rights Act of 1964, referred to in text, is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VI of the Act is classified generally to subchapter V (§2000d et seq.) of chapter 21 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables.

§19237. Definitions

In this part:

(1) Covered individual

The term "covered individual" means an individual who—

(A) 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

(B) is designated as a covered individual by the Federal research agency concerned.

(2) Foreign country of concern

The term "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 by the Secretary of State.

(3) Foreign entity of concern

The term "foreign entity of concern" means a foreign entity that is—

(A) designated as a foreign terrorist organization by the Secretary of State under section 1189(a) of title 8;

(B) included on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury (commonly known as the SDN list);

(C) owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation (as such term is defined in section 4872 of title 10);

(D) alleged by the Attorney General to have been involved in activities for which a conviction was obtained under—

(i) chapter 37 of title 18 (commonly known as the Espionage Act);

(ii) section 951 or 1030 of title 18;

(iii) chapter 90 of title 18 (commonly known as the Economic Espionage Act of 1996);

(iv) the Arms Export Control Act (22 U.S.C. 2751 et seq.);

(v) section 2274, 2275, 2276, 2277, or 2284 of this title;

(vi) the Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.); or

(vii) the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.); or

(E) determined by the Secretary of Commerce, in consultation with the Secretary of Defense and the Director of National Intelligence, to be engaged in unauthorized conduct that is detrimental to the national security or foreign policy of the United States.

(4) Malign foreign talent recruitment program

The term "malign foreign talent recruitment program" means—

(A) 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—

(i) 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;

(ii) being required to recruit trainees or researchers to enroll in such program, position, or activity;

(iii) 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;

(iv) being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;

(v) 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;

(vi) 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;

(vii) 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;

(viii) 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

(ix) 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—

(i) 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;

(ii) 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

(iii) 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; ¹ Public Law 115–232).

(Pub. L. 117–167, div. B, title VI, §10638, Aug. 9, 2022, 136 Stat. 1669.)

Editorial Notes

References in Text

The Arms Export Control Act, referred to in par. (3)(D)(iv), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§2751 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of Title 22 and Tables.

The Export Control Reform Act of 2018, referred to in par. (3)(D)(vi), is subtitle B (§§1741–1781) of title XVII of div. A of Pub. L. 115–232, Aug. 13, 2018, 132 Stat. 2208, which is classified principally to chapter 58 (§4801 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 4801 of Title 50 and Tables.

The International Emergency Economic Powers Act, referred to in (3)(D)(vii), is title II of Pub. L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified generally to chapter 35 (§1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.

Section 1286 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, referred to in par. (4)(B)(ii), (iii), is section 1286 of Pub. L. 115–232, which was formerly set out as a note under section 2358 of Title 10, Armed Forces, prior to transfer and is now set out as a note under section 4001 of Title 10.

¹ See References in Text note below.