Under Section 117 of the Higher Education Act of 1965, institutions that receive federal financial assistance like the University of Oregon must report to the Department of Education gifts and contracts received from a foreign source. The CHIPS and Science Act of 2022 also requires disclosure to the National Science Foundation.
The Export Control Office is the responsible unit for collecting data from other units across campus related to their financial transactions with foreign sources, compiling the data, and submitting the required reports to the U.S. Department of Education and the National Science Foundation.
These FAQs are intended to assist units in determining which transactions require reporting to the Export Control Office.
- What triggers the requirement to report?
- What do we report?
- When do we need to report transactions, and who collects the information for the submission?
- Who needs to submit information?
- What is a “foreign source”?
- What is a “foreign country of concern”?
- How do I determine whether a gift or contract is attributable to a foreign source?
- How should we report contracts with indeterminate values?
- How should we report gifts or contracts that are promised over a multiple-year period?
- Do we need to report a memorandum of understanding with a foreign party?
- Can we wait to report a contract until we receive money, property, or services?
- How should we report gifts or contracts from an intermediary that is not from a country of concern, but the gift or contract originates from a foreign source from a country of concern?
- Do we need to report the name of a donor that has requested anonymity?
- How do we calculate amounts aggregated by sponsor or donor?
- What should we do if we missed sending information to the Export Control Office?
- What should we do if we realize that the information we provided previously is inaccurate, materially incorrect, or incorrectly valued the contract or gift amount?
- Can we opt out of reporting, given our office’s lack of capacity and the administrative burden involved?
Q: What triggers the requirement to report?
Can we opt out of reporting, given our office’s lack of capacity and the administrative burden involved? Under Section 117 of the Higher Education Act of 1965, institutions that receive federal financial assistance like the University of Oregon must report to the Department of Education gifts and contracts received from a foreign source. The CHIPS and Science Act of 2022 also requires disclosure to the National Science Foundation.
Most relevant to the University of Oregon, Section 117 reporting is required when:
- A gift(s) of money or property from a foreign source meets or exceeds $250,000 (in the aggregate)
- The institution enters into a contract(s) with a foreign source that meets or exceeds $250,000 (money coming to the university, in the aggregate)
- The institution receives and enters into a combination of gifts and grants that meets or exceeds $250,000
Because the reporting is for the University of Oregon as a whole and reporting is based on a foreign-source level and not at an individual transaction level, individual departments must report transactions below the reporting threshold to the Export Control Office, which then aggregates the information to determine whether the university has met the $250,000 reporting threshold.
Under the NSF requirement, the University of Oregon must disclose annually financial support received directly or indirectly from a foreign source that is associated with a foreign country of concern when the value meets or exceeds $50,000.
Current countries of concern are:
- The People’s Republic of China
- The Democratic People’s Republic of Korea (North Korea)
- The Russian Federation
- The Islamic Republic of Iran
- Any other country deemed to be a country of concern as determined by the Secretary of State
Because the reporting is for the University of Oregon as a whole and reporting is based on a foreign-source level and not at an individual transaction level, individual departments must report transactions below the reporting threshold to the Export Control Office, which then aggregates the information to determine whether the university has met the $50,000 reporting threshold.
A: For all transactions with a foreign source:
- Units must report transactions of under $100,000 and transactions of indeterminate amount to the Export Control Office. They will need to disclose the name of the foreign source, the country, the contract date or gift received date, and the amount.
- Units must report transactions of more than $100,000 to the Export Control Office. These units will be asked to complete a more detailed spreadsheet to facilitate reporting to the U.S. Department of Education.
For all transactions with a foreign source from a country of concern:
- Units must report all transactions and transactions of indeterminate amount to the Export Control Office when the foreign source is the country of concern. These units will be asked to complete a more detailed spreadsheet to facilitate reporting to the National Science Foundation.
The Export Control Office totals the value of all reported transactions to determine if the thresholds have been met.
For the Section 117 report, the UO must report contracts with or gifts from the same foreign source that have a value of $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year.
For the National Science Foundation Foreign Financial Disclosure Report, the UO must report contracts with or gifts from the same foreign source located in a country of concern that have a value of $50,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a fiscal year.
The UO is required to submit the name of the foreign source, the address of the foreign source, the amount and date of the gift or contract, and the recipient (including all intermediaries).
Q: When do we need to report transactions, and who collects the information for the submission?
A: The Export Control Office collects transaction information from units, aggregates the information, and submits required reporting to the U.S. Department of Education and to the National Science Foundation (NSF).
The Higher Education Act Section 117 reporting is biannual. The reporting periods are January 1 – June 30, with the report due July 30, and July 1 – December 31, with the report due January 30.
The National Science Foundation (NSF) Foreign Financial Disclosure Report is due annually. The reporting period is July 1 – June 30, with the report due July 30.
The Export Control Office collects transaction information from units for both reports during the months of July and January. Units will receive an email with instructions about what transactions need to be reported. If you believe your unit has received a gift or contract from a foreign source and you have not received an email requesting transaction information, please contact us.
Q: Who needs to submit information?
A: Any unit who enters into a contract with a foreign source or receives a gift from a foreign source must submit information about that transaction to the Export Control Office for required foreign financial filings with the U.S. Department of Education and the National Science Foundation (NSF).
This may include units that are not directly under the University of Oregon, but who receive gifts and contracts for the benefit of the university, such as the Associated Students of the University of Oregon (ASUO) and UO Foundation.
The Export Control Office maintains a list of units that are most likely to have reportable transactions and contacts those units in July and January of each year to submit information for required reporting.
If your unit has transactions with foreign sources and should be included in this list or if you are unsure if your unit is already on the distribution list, please email us.
Q: What is a “foreign source”?
A: Section 117 of the Higher Education Act and the CHIPS and Science Act define “foreign source” in the same way. A foreign source includes:
- A foreign government, including an agency of a foreign government;
- A legal entity, governmental or otherwise, created solely under the laws of a foreign state(s);
- An individual who is not a citizen or a national of the U.S. or a trust territory or protectorate thereof; or
- An agent, including a subsidiary or affiliate of a foreign legal entity, acting on behalf of a foreign source
Q: What is a “foreign country of concern”?
A: A foreign country of concern currently means 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 deemed to be a country of concern as determined by the Secretary of State.
The special administration regions of Macau and Hong Kong of the People’s Republic of China are not considered a part of a foreign country of concern. Taiwan is also not considered part of the People’s Republic of China for the purposes of the National Science Foundation Foreign Financial Disclosure Report.
Q: How do I determine whether a gift or contract is attributable to a foreign source?
A: Section 117 of the Higher Education Act states that the country to which a gift or a contract is attributable “is the country of citizenship, or if unknown, the principal residence for a foreign source who is a natural person, and the country of incorporation, or if unknown, the principal place of business, for a foreign source which is a legal entity.” See 20 U.S.C. § 1011f(b)(1).
When a gift is received from or a contract entered into with an agent acting on behalf of a principal foreign source, the country of attribution is that of the principal foreign source.
Your unit should exercise due diligence and make a good faith effort to understand the source of a gift or the identity of a contracting party. In exercising due diligence and making this good faith effort, your unit may directly ask the gifting individual or entity or the contract counterparty to confirm whether they meet any of the statutory definitions of a foreign source.
However, although obtaining certifications from donors and counterparties may certainly be part of your unit’s efforts to determine whether a transaction is reportable, the Department of Education has indicated that relying solely on a certification would cede the determination of whether a transaction is reportable entirely to the potential foreign agent, which runs counter to the purposes of the statute. The Department of Education cautions against overreliance on certifications or other third-party statements as a sufficient exercise of reasonable due diligence by the institution. The UO has an ultimate responsibility to ensure its compliance with Section 117 and the National Science Foundation’s Foreign Financial Disclosure Report.
Therefore, units are encouraged to verify independently whether an individual or entity meets the definition of a foreign source. For example, a unit could conduct a search of publicly available information and records associated with the individual or entity from whom it is receiving a gift or with whom it is contracting. Units may also email the Export Control Office if they would like assistance in ascertaining whether a party meets the definition of a foreign source.
For example, your unit receives a $500,000 gift from a charitable trust incorporated in Country C. According to public records, the charitable trust has a single trustee, an individual who is a citizen of Country D, and that trustee exercises complete management and control over the operations of the trust. While the direct source of the gift is a Country C trust, the UO would be required to report the Country C trust as a foreign source, the individual trustee as the principal foreign source, and Country D as the country of attribution based on the country of citizenship for the principal foreign source.
Q: How should we report contracts with indeterminate values?
A: Under Section 117, when confronted with contracts that are not fixed price, the UO must use a reasonable valuation methodology to determine the total value of the contract and report it accordingly. If a reasonable value can be determined, units should report the contract to the Export Control Office with $0.
Common agreements that have an indeterminate value are data transfer agreements, material transfer agreements, unfunded collaboration agreements, or license agreements in which the unit would not collect fees until a certain milestone has been reached.
Under the National Science Foundation required reporting, if the contract with an indeterminate value is with a foreign source from China, North Korea, Russia, or Iran, report the contract to the Export Control Office as $0.
Q: How should we report gifts or contracts that are promised over a multiple-year period?
A: For gifts under Section 117, units should report the total value received from a particular foreign source within a calendar year. To ensure accurate reporting, the unit should report the value of the gift received to the Export Control Office to aggregate the data. The UO does not need to aggregate the value of gifts received in different calendar years to determine whether those gifts would be reportable pursuant to Section 117.
For contracts under Section 117, units should report when they enter into a contract with a foreign source. The reporting requirement is therefore triggered by entering into a contract, not the completion or performance of a contract. When a contract is to be performed over multiple years, an institution must consider the value of the contract over the lifetime of the contract and not solely the value of the contract within a given calendar year. The UO must report that value once, no later than the first reporting deadline following the date the contract is entered into and not as contract payments are made over multiple years.
For the National Science Foundation Foreign Financial Disclosure Report, units should report gifts or contracts spanning more than one year when the amounts are received. Amounts received in future years must be reported in future years.
Q: Do we need to report a memorandum of understanding with a foreign party?
A: Maybe. If the memorandum of understanding is non-binding and does not commit either party to specific deliverables but rather reflects their aspirations of working together, reporting under Section 117 or the NSF is not required.
However, if the memorandum of understanding includes legally binding obligations, the unit should report the transaction to the Export Control Office.
Q: Can we wait to report a contract until we receive money, property, or services?
A: For Section 117, no. The reporting requirement is triggered by entering into the contract, not the completion or performance of a contract.
For the National Science Foundation Foreign Financial Disclosure Report, yes. The UO will report the amount when it is received.
Because the reporting is for the University of Oregon as a whole and reporting is based on a foreign-source level and not at an individual transaction level, individual departments must report transactions below the reporting threshold to the Export Control Office, which then aggregates the information to determine if the university has met the reporting threshold.
A: If the gift or contract originates from a country of concern and the gift or contract passes through an intermediary from a non-country of concern, the UO is required to report the gift or contract to the National Science Foundation.
For example, if the unit receives a gift from a European foundation, but the source of the gift originates from a country of concern, the unit should notify the Export Control Office during the data collection window (July and January). If reporting thresholds are met, the UO will report the transaction and list the source of the gift as the foreign source based in the country of concern, the country of attribution as the country of concern, and the intermediary as the European foundation.
Q: Do we need to report the name of a donor that has requested anonymity?
A: Yes, if the donor’s identity can be reasonably obtained and the donor is considered a foreign source. The Department of Education and the National Science Foundation expect that the information is reported. The federal government has indicated that non-disclosure clauses aren’t acceptable exemptions from disclosure requirements.
Here is what the Department of Education says about anonymous donors:
Where an institution receives a direct gift from a donor who wishes to remain anonymous from the public, the institution would have knowledge of the foreign source’s identity and would be required to disclose the gift provided it meets the other requirements of Section 117.
In reporting the data to the Export Control Office, the unit can indicate that the gift was anonymously provided and request that the information be treated as confidential by the Department of Education, as the Department of Education has stated that it will not make anonymous donors’ identities or addresses available to the public. See “Foreign Gifts and Contract Disclosures Summary of Public Comments with Responses (60-day notice) (PDF)”, page 7; also Appendix B (DOC), Q8 to ED’s June 22, 2020 “Electronic Announcement.”
Q: How do we calculate amounts aggregated by sponsor or donor?
A: For the Section 117 report, the UO must report contracts with or gifts from the same foreign source that have a value of $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year.
For the National Science Foundation Foreign Financial Disclosure Report, the UO must report contracts with or gifts from the same foreign source located in a country of concern that have a value of $50,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a fiscal year.
Units across the UO submit reports of all foreign source gifts and contracts to the Export Control Office, which will total the values to determine if the thresholds have been met.
Units may use the final contract signature date or gift acceptance date to determine which gifts or contracts to report in a given reporting period.
The examples below show how a unit should calculate the totals. Note that reporting of start and end dates are only required for contracts; only the receipt date is required for gifts.
Example 1: Multiple Transactions and Transaction Types
The unit receives three transactions from Foreign Source A.
- Transaction 1: Contract, $50,000, Received 1/30/2024 (Start Date 2/15/2024 - End Date 12/31/2024)
- Transaction 2: Grant, $25,000, Received 3/15/2024 (Start Date 2/1/2024 - End Date 12/31/2024)
- Transaction 3: Contract, $10,000, Received 6/5/2024 (Start Date 6/1/2024 - End Date 5/31/2025)
The aggregate of these contracts is $85,000, which is below the reporting threshold for Section 117. However, all the transactions must be reported to the Export Control Office for the July 31 Section 117 and NSF report. Although the transaction amounts are below the dollar threshold for Section 117 and do not involve a foreign country of concern per the NSF regulations, other UO units may have transactions with Foreign Source A that result in an aggregate total above the $250,000 reporting threshold for Section 117.
Example 2: Transactions Reach Threshold in Latter Half of the Year
In the January – June reporting period, the unit receives a total of $100,000 from Foreign Source B and $170,000 from the same foreign source in the July-December Section 117 reporting period.
The unit reports these transactions to the Export Control Office to aggregate during each reporting period. Transactions in the first half of the calendar year roll over to the next six months of the calendar year for the purpose of determining whether a transaction with a foreign source should be reported under Section 117.
The Export Control Office would report the entire $270,000 in the July – December Section 117 report, which is submitted in January 31 the following year.
Example 3: Transactions with a Foreign Source in a Country of Concern
A unit receives $200,000 from Foreign Source C, which is located in China, for program fees for international students from the institution studying at the UO.
The unit reports this transaction to the Export Control Office to aggregate during the reporting period. The UO has no other transactions across the institution from Foreign Source C.
The Export Control Office reports the transaction to the NSF for the Foreign Financial Disclosure Report because it meets the $50,000 reporting threshold for NSF, but not to the U.S. Department of Education for the Section 117 report, since the $250,000 Department of Education threshold was not met.
Example 4: Transactions with a Negative Amount
A unit receives a contract for $325,000 from Foreign Source D. During the same reporting period, the unit completes the work under the contract under budget and returns $80,000. With the negative transaction amount, the total amount received is $245,000.
In general, units should ignore negative transaction amounts. The unit should still report the $325,000 from Foreign Source D, which the Export Control Office would report to the U.S. Department of Education Section 117 report, to avoid the appearance of underreporting.
Example 5: Transactions with an Indeterminate Value
A unit has a contract with Foreign Source E for $215,000 and reports this transaction to the Export Control Office.
A separate unit has a material transfer agreement with Foreign Source E to receive biological samples for research. The materials do not have a known or fair market value, so the value of the material transfer agreement cannot be easily obtained.
Since the value of the material transfer agreement cannot be obtained, the UO’s transactions with Foreign Source E may be below the Section 117 $250,000 reporting threshold. However, the Export Control Office, barring information to the contrary, would report both the material transfer agreement (with a value of $0) and the $215,000 contract to avoid underreporting.
Q: What should we do if we missed sending information to the Export Control Office?
A: Notify the Export Control Office and send the information right away. The Associate Director of Conflicts of Interest and the Export Controls will work with the unit to collect the correct information and report new information if needed.
A: Notify the Export Control Office and send the information right away. The Associate Director of Conflicts of Interest and Export Controls will work with the unit to collect the correct information and report new information if needed.
The U.S. Department of Education and the National Science Foundation do not allow institutions to edit final submissions. The UO must withdraw its prior report and re-submit a corrected report in full.
A: No. The information collection is subject to 18 U.S.C. § 1001, which states that whoever knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, may be subject to fines and imprisonment.
Furthermore, if a school fails to discharge the statutory obligations of Section 117, the Secretary of Education may request the Department of Justice to undertake a civil action in federal district court.