Export Controls – Export Provisions in Research Agreements NCURA Regional Spring Meeting April 27, 2008
Fundamental Research Exclusion • Information is ordinarily published and shared broadly within the scientific community • Distinguished from proprietary research and from industrial development, design, production, and product utilization
Fundamental Research Exclusion • Does not apply to research performed under national security controls • Prepublication review with a right to withhold permission for publication • Restrictions on prepublication dissemination of information to non-U.S. citizens • Restrictions on participation of non-U.S. citizens in the research
AFRL Clause “Generally, only United States citizens and permanent resident aliens are eligible to be participating faculty under this Agreement. Exceptions will be determined by AFRL/MN on a case-by-case basis.”
DOD Clause 252.204-70000 “(a) The Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium (e.g. film, tape, document), pertaining to any part of this contract or any program related to this contract, unless (1) The Contracting Officer has given prior written approval; or (2) The information is otherwise in the public domain before the date of release
DOD Clause 252.204-70000 (b) Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release. (c) The Contractor agrees to include a similar requirement in each subcontract. . . .”
FAA Clause “The Associate Administrator for Civil Aviation Security must review all research results related to civil aviation security prior to release to the general public. This includes such items as dissertations, theses, archival and conference technical papers, technical reports, etc. This requirement is to determine if the results contain information that may assist terrorists in undermining established security systems.
FAA Clause Information must be submitted by the grantee to the FAA Technical Monitor, whom then forwards the information to. . . . Within 30 days of receipt by the FAA technical monitor, a notice of approval, declination, or a request for modification of the publication will be provided by the Office of Civil Aviation Security. . . .”
DARPA Clause G-9000 “There shall be no dissemination or publication, except within and between the Contractor and any subcontractors, of information developed under this contract or contained in the reports to be furnished pursuant to this contract without prior written approval of the Contracting Officer Representative (COR). All technical reports will be given proper review by appropriate authority to determine which Distribution Statement is to be applied prior to the initial distribution of these reports by the Contractor.
DARPA Clause G-9000 Papers resulting from unclassified contracted fundamental research are exempt from prepublication controls and this review requirement, pursuant to DoD Instruction 5230.27 dated October 6, 1987.”
Army Clause – Foreign Nationals Performing under Contract In accordance with 8 USC 1324a, it is unlawful to hire for employment in the US an individual without verifying that individual's employment authorization. 8 CFR 274a.2 VERIFICATION OF EMPLOYMENT ELIGIBILITY identifies the official documents that establish employment eligibility. Prior to performance of work by a foreign national as a result of this contract, the employer shall provide the Contracting Officer the name of the foreign national and identify the type of form (s) produced for verification of employment status.
Army Clause – Foreign Nationals Performing under Contract Should the foreign national's performance require access to DoD facilities, the employer shall coordinate with the sponsor providing access, in order to submit the following: 1. Individual's Name 2. Citizenship 3. Date and Location of the Visit 4. Purpose of the Visit 5. Passport Number 6. Employer's Verification of Work Authorization
DFARS Airforce Clause 5352.227-9000 (Export Controlled Data Restrictions) “Equipment and technical data generated or delivered under this contract are controlled by the International Traffic in Arms Regulation (ITAR), 22 CFR Sections 121 through 128. An export license is required before assigning any foreign source to perform work under this contract or before granting access to foreign persons to any equipment and technical data generated or delivered during performance (see 22 CFR Section 125). The Contractor shall notify the Contracting Officer and obtain written approval of the Contracting Officer prior to assigning or granting access to any work, equipment, or technical data generated or delivered under this contract to foreign persons or their representatives.
DFARS Airforce Clause 5352.227-9000 (Export Controlled Data Restrictions) The notification shall include the name and country of origin of the foreign person or representative, the specific work, equipment, or data to which the person will have access, and whether the foreign person is cleared to have access to technical data (DoD 5220.22-M, National Industrial Security Program Operating Manual (NISPOM)).”
Confidentiality Clause Should Sponsor deem it necessary to disclose information considered confidential and/or proprietary by it to University, it will be clearly marked by Sponsor, in writing, as “Confidential Information”. Except as required by law, University will use reasonable efforts to avoid disclosure of such confidential information for a period of three (3) years from the date of disclosure. This obligation does not apply to information that was known to University prior to its receipt from Sponsor, that is independently developed by the University, or becomes known at any time to third parties through no fault of University.
Confidentiality Clause - Amended Because University is an institution of higher education and has many foreign persons who are students and employees, the University intends to conduct the project [as fundamental research under the export regulations.] OR [such that the technical information generated by University qualifies as public domain under ITAR 120.10(5) and 120.11 or as publicly available under EAR 15CFR734.(b)(3) and 734.7 through 734.11.]
Confidentiality Clause - Amended In the event such Confidential Information is determined by Sponsor to be export controlled, University reserves the right to elect not to receive such export controlled information and a plan for receipt, use, and dissemination of such export controlled confidential information must be developed and agreed to by University prior to such disclosure. [Plus right to terminate]