Are You Operating in a "Country of Concern"? The Infrastructure Investment and Jobs Act has Changed the Rules

The Infrastructure Investment and Jobs Act has Changed the Rules

The "Infrastructure Investment and Jobs Act," Public Law 117-318, includes provisions related to the prohibition of Department of Health and Human Services (HHS) funding to countries of concern. Specifically, the bill prohibits HHS funding to countries that pose a threat to U.S. national security or have a record of human rights abuses. There are implications and potential impacts for U.S. foreign policy and research. Section 1005 of the law prohibits the Department of Health and Human Services (HHS) from providing funding to countries that are designated as state sponsors of terrorism or countries that have been designated by the U.S. government as having engaged in a pattern of gross violations of human rights. The law also prohibits funding to countries that are subject to U.S. sanctions for activities that threaten U.S. national security.

The prohibition of HHS funding to countries of concern is one of several provisions included in the Infrastructure Investment and Jobs Act that are intended to protect U.S. national security and promote human rights. Some examples of countries that have been designated as having engaged in a pattern of gross violations of human rights by the U.S. government include China, Cuba, Iran, North Korea, and Russia. These countries have been criticized by the U.S. government and others for their human rights records, including the suppression of political dissent, restrictions on freedom of speech and the press, and the mistreatment of minority groups.

Other countries have been subject to U.S. sanctions for activities that threaten U.S. national security, such as support for terrorism, the proliferation of weapons of mass destruction, or other illicit activities. These countries include Iran, North Korea, Russia, and Venezuela, among others. In addition to prohibitions on research collaborations, sanctions can take various forms, such as asset freezes, trade restrictions, travel bans, and other measures designed to limit the country's ability to engage in activities that threaten U.S. interests.

Potential Impact

The prohibition of HHS funding to countries of concern under the Infrastructure Investment and Jobs Act has the potential to significantly impact the ability of these countries to collaborate on research efforts globally. The provision does not specify what types of HHS funding are covered, but it is likely that it applies to all types of HHS funding, including grants, contracts, and other forms of financial assistance. The provision does not appear to apply to funding that is provided for humanitarian purposes or to support the provision of healthcare services to vulnerable populations.

An example of sanctions limitations can be seen in the White House Office of Science, Technology and Policy’s (OTSP) announcement in June of 2022 that the U.S. will “‘wind down’ research collaborations on federally funded projects involving research institutions and individuals affiliated with the Russian government in response to its invasion of Ukraine.”

European Science Ministers affirmed in their G7 Science Minister’s Communique, June 12-14, 2022, that they too were imposing restrictions on “government funded research projects and programs involving Russian government participation. The European Union’s major research funding effort, Horizon Europe, an estimated 1.1 billion USD research funding initiative, requires additional justifications in applications which involve countries of concern. Applicants must articulate why the collaboration is in the best interest of the EU and these are adjudicated as part of the award decision process.

Implications for U.S. Foreign Policy

The Infrastructure Investment and Jobs Act  prohibition of HHS funding, Europe and the G7’s affirmations, regarding collaboration with countries of concern has important implications for U.S. and allied foreign policy. By restricting access to HHS funding, and the G7 affirmations, the U.S. government and European funders are sending a clear message to these countries that their behavior is unacceptable and will not be tolerated.

It is important to note that U.S. designations of countries as having engaged in a pattern of gross violations of human rights or subject to sanctions are subject to change over time. Countries may be added or removed from these lists based on their own actions and reconsideration of U.S. and allied policies. It is the role of the U.S. State Department and other relevant agencies to continually monitor and evaluate the actions of countries around the world and to take appropriate actions to promote U.S. interests and values. This responsibility extends to awarding agencies and those who receive federal research awards. Under the CHIPS and Science Act, NSPM-33, and other Congressional and Agency actions, research security requirements now include identification, remediation and reporting of previously unreported collaborations which may violate these restrictions to prevent not only violation of U.S. foreign policy and regulations but to prevent loss of intellectual property.

Global Health and Security Should Not Be Mutually Exclusive

Research security can be a research enabler rather than a stumbling block. Bringing researchers into compliance, and ensuring they stay there, protects those who are committed to research for public health and in the public interest. Research funding agencies and research administrators have a duty of care to protect their trusted research workforce to prevent their being exploited or wittingly or unwittingly falling out of compliance. While in rare cases, removal may be necessary to mitigate risk to reputation and resources the vast majority of researchers want to stay on task and be trusted to conduct research while remaining compliant. For this to happen, they need the help of funding agencies and research administrators to do this.

About IPTalons

IPTalons, Inc is a research security consultancy company dedicated to protecting reputations, resources, and researchers in the global research enterprise. We believe that compliance requires doing things with researchers rather than to them. You can protect your trusted workforce by establishing your due diligence research security program and controls designed to keep your organization compliant and protect your research enterprise. Our life’s work is protecting your life’s work. Ask us how.

References

CHIPS and Science Act accessed online (3/23) at: https://www.congress.gov/bill/117th-congress/house-bill/4346

"Infrastructure Investment and Jobs Act," Public Law 117-318, Section 1005, accessed online (3/23) at: https://www.congress.gov/117/plaws/publ318/PLAW-117publ318.pdf

NSPM-33 Guidelines accessed online (3/23) at: https://www.nsf.gov/bfa/dias/policy/nstc_disclosure.jsp

U.S. State Department, Special Watch List accessed online (3/23) at: https://www.state.gov/countries-of-particular-concern-special-watch-list-countries-entities-of-particular-concern/

White House “Guidance on Scientific and Technological Cooperation with the Russian Federation for U.S. Government and U.S. Government Affiliated Organizations accessed online (3/23) at: https://www.whitehouse.gov/ostp/news-updates/2022/06/11/guidance-on-scientific-and-technological-cooperation-with-the-russian-federation-for-u-s-government-and-u-s-government-affiliated-organizations/