Export Controls –
Export Provisions in
Research Agreements
Research Administration Office
Office of Ethics, Compliance & Audit
Services
June 23, 2008
Presenters
• Dianne Archer, Research Administration
Office
• Lourdes DeMattos, Research
Administration Office
• Barbara Yoder, Research Administration
Office
• Patrick Schlesinger, Office of Ethics,
Compliance & Audit Services
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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
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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
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Questions for Panel
• Is this clause acceptable as written, or
does it take UC out of the fundamental
research safe harbor?
• What modifications, if any, need to be
made to make this clause acceptable?
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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.”
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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.”
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DOD Clause 252.204-7000
“(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
(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. . . .”
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DOD Clause 252.204-7000
“(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
(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. . . .”
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Typical Export Clause #1
• Subcontract Paragraph: Compliance and Export Controls
Each party acknowledges that any information or
materials provided by the other under this Agreement may
be subject to U.S. export, trade or security laws; each
party agrees to comply with all such laws as well as other
applicable laws. Sponsor will use commercially reasonable
efforts to avoid disclosure to University or Researcher(s)
any information subject to U.S. Export Administration
Regulations (“EAR”) or the International Traffic in Arms
Regulations (“ITAR”). Each party additionally agrees to
comply with the Compliance Requirements included in
Attachment B to this Agreement. The terms and
conditions in Section 1 through 8 of this Agreement will
prevail over those in Attachment B to the extent of any
conflict except to the extent otherwise mandated by the
Prime Government Contract or applicable law.
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Typical Export Clause #1
• Subcontract Paragraph: Compliance and Export Controls
Each party acknowledges that any information or
materials provided by the other under this Agreement may
be subject to U.S. export, trade or security laws; each
party agrees to comply with all such laws as well as other
applicable laws. Sponsor will use commercially reasonable
efforts to avoid disclosure to University or Researcher(s)
any information subject to U.S. Export Administration
Regulations (“EAR”) or the International Traffic in Arms
Regulations (“ITAR”). Each party additionally agrees to
comply with the Compliance Requirements included in
Attachment B to this Agreement. The terms and
conditions in Section 1 through 8 of this Agreement will
prevail over those in Attachment B to the extent of any
conflict except to the extent otherwise mandated by the
Prime Government Contract or applicable law.
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Typical Export Clause #2
Compliance with Laws; Export Controls. Individual shall comply with all
applicable laws, rules and regulations arising in connection with this
Agreement and Individual’s use of the Confidential
Information. Without limiting the foregoing, this Agreement is made
subject to any restrictions under the export control laws, rules and
regulations concerning the export of products, materials or technical
information either from the United States of America or to a foreign
national within the United States of America (e.g., a “deemed export”
applying to transfers solely within the United States of America) which
may be imposed upon or related to Individual from time to time by the
government of the United States of America. In connection therewith,
Individual agrees that it will not export, directly or indirectly, technical
information provided or arising under this Agreement or any materials
or products using or embodying such technical information to any
country or foreign national for which the United States government or
any agency thereof at the time of export requires an export license or
other governmental approval, without first obtaining the written
consent to do so from the Department of Commerce or other agency of
the United States government when required by an applicable statute
or regulation.
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Typical Export Clause #2
Compliance with Laws; Export Controls. Individual shall comply with all
applicable laws, rules and regulations arising in connection with this
Agreement and Individual’s use of the Confidential
Information. Without limiting the foregoing, this Agreement is made
subject to any restrictions under the export control laws, rules and
regulations concerning the export of products, materials or technical
information either from the United States of America or to a foreign
national within the United States of America (e.g., a “deemed export”
applying to transfers solely within the United States of America) which
may be imposed upon or related to Individual from time to time by the
government of the United States of America. In connection therewith,
Individual agrees that it will not export, directly or indirectly, technical
information provided or arising under this Agreement or any materials
or products using or embodying such technical information to any
country or foreign national for which the United States government or
any agency thereof at the time of export requires an export license or
other governmental approval, without first obtaining the written
consent to do so from the Department of Commerce or other agency of
the United States government when required by an applicable statute
or regulation.
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Army Research Laboratory Clause
9.1 Open Publication Policy. Notwithstanding the reporting
requirements of this Agreement, parties to this Agreement favor
an open-publication policy to promote the commercial
acceptance of the technology developed under this Agreement,
but simultaneously recognize the necessity to protect proprietary
information.
9.2 Prior Review of Public Releases. The Parties agree to confer
and consult with each other prior to publication or other
disclosure of the results of work under this Agreement to ensure
that no classified or proprietary information is released. Prior to
submitting a manuscript for publication or before any other
public disclosure, each Party will offer the other Party ample
opportunity (not to exceed 60 days) to review such proposed
publication or disclosure, to submit objections, and to file
application letters for patents in a timely manner.
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Army Research Laboratory Clause
9.3 Publication Legend. It is herein agreed that except for
the disclosure of basic information regarding this
Agreement such as membership, purpose and a general
description of the technical work, the Recipient will submit
all proposed public releases to the ARL cooperative
Agreement Manager for comment prior to release. Public
releases include press releases, specific publicity or
advertisement, and articles for proposed publication or
presentation. In addition, articles for publication or
presentation will contain an acknowledgement of support
and a disclaimer. This should be included to read as
follows. . . .
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Army Research Laboratory Clause
9.1 Open Publication Policy. Notwithstanding the reporting
requirements of this Agreement, parties to this Agreement favor
an open-publication policy to promote the commercial
acceptance of the technology developed under this Agreement,
but simultaneously recognize the necessity to protect proprietary
information.
9.2 Prior Review of Public Releases. The Parties agree to confer
and consult with each other prior to publication or other
disclosure of the results of work under this Agreement to ensure
that no classified or proprietary information is released. Prior to
submitting a manuscript for publication or before any other
public disclosure, each Party will offer the other Party ample
opportunity (not to exceed 60 days) to review such proposed
publication or disclosure, to submit objections, and to file
application letters for patents in a timely manner.
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Army Research Laboratory Clause
9.3 Publication Legend. It is herein agreed that except for
the disclosure of basic information regarding this
Agreement such as membership, purpose and a general
description of the technical work, the Recipient will submit
all proposed public releases to the ARL cooperative
Agreement Manager for comment prior to release. Public
releases include press releases, specific publicity or
advertisement, and articles for proposed publication or
presentation. In addition, articles for publication or
presentation will contain an acknowledgement of support
and a disclaimer. This should be included to read as
follows. . . .
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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.
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.”
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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.
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.”
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MDA Disclosure of Information
Clause – MDA>Prime>UC
• Initial position – “In accordance with contract,
all publications must be cleared by MDA and
submitted by [prime] for publication.”
• Second position – “Alternative Procedures for
Educational Institutional Subcontractor”
(7000 Clause)
• Final position – After further negotiation,
prime elects not to flow down the approval
provisions and accepts a 30-day review
period.
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MDA Disclosure of Information
Clause – MDA>Prime>UC
• Is UC liable if MDA discovers that the
prime did not flow down the prior
approval requirements?
• If PI separately follows informal
direction to abide by the prior approval
requirements that were not included in
the contract, what effect does this have
on the UC research?
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