Export Controls and Publication Issues

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Export Controls and Publication Issues

• Richard BestSPARCS

2
Introduction

• Like other research universities, NCSU is
  experiencing a marked increase in the number of
  Defense-funded direct and flow-through agreements
  that require publications to be approved by
  agency.
• These restrictions conflict with UNC System
  policy on the right to publish.
• Restrictions set off a domino effect that
  activates export control provisions.

3
Agenda

• History
• DFAR 252.204-7000
• New Intransigence
• Exceptions
• Establishment of Review Criteria
• Informed Consent
• Whats next??

4
History

• Federal agencies have supported publication
  unless the work or results came under the
  established classification system.
• About 6 months after 9/11/2001, a new designation
  not classified, but sensitive emerged.
• DoD, particularly Army and Air Force, began
  adding requirements for review and approval of
  publications.

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UNC System Administrative Manual

• Appopriateness of University Research
• All activities of the University of North
  Carolina, including any research collaborations
  with private firms, as well as with foundations,
  and government agencies, must support its
  teaching, research, and public service missions.
  The University environment must allow faculty and
  students to pursue freely learning and research.
  The University must also maintain its
  independence and integrity to assure
  impartiality, and it may not agree to any
  inappropriate limits on the freedom to publish
  research findings. Most importantly, the
  University must retain the public's trust by
  engaging in research activities that are
  consistent in nature, quality, scope, and
  importance with its educational purpose, and that
  are conducted under conditions that ensure its
  academic integrity. The chancellors are the
  responsible officers for the administration of
  this policy and they are to take such steps as
  are necessary to maintain it.

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• 252.204-7000 Disclosure of Information.
•  DISCLOSURE OF INFORMATION (DEC 1991)
•   (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 under this
  contract. Subcontractors shall submit requests
  for authorization to release through the prime
  contractor to the Contracting Officer.

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New Intransigence

• NCSU contract negotiators were virtually always
  successful in explaining the universitys
  publication policy to DoD agencies and prime
  contractors. The requirement for review and
  prior written approval was usually changed to
  review and comment.
• Starting in mid-2002, DoD agencies began invoking
  DFAR 252.204-7000 and denying requests for a
  language change.

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Questionable Rationale

• I have discussed this issue with both the
  project engineer and our legal advisors.  Both do
  not feel comfortable deleting this clause from
  the contract.  Given the post 9/11 environment,
  heightened security has promoted an increased
  level of caution in the publication of military
  research and development.  This research may not
  be considered sensitive now but may impact future
  programs in the future.  This is an issue that is
  rising in numerous STTRs and contracts.  Policy
  is currently being developed that will explain
  the importance of this clause and the overall
  position of AFRL as to its utilization in our
  contracts. 
•  
• Captain Chad Nichols
• US Air Force Research Labs
• Contracting Officer

9
To make matters worse.

• the publication restrictions are appearing in
  subcontracts to NCSU from small businesses under
  both SBIR and STTR program awards.
• Any requested changes to the contract language by
  NCSU must be directed through the small business
  to the DoD agency.

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Last Resort

• Classified or Other Confidential Research
  Projects
• Research conducted by faculty or students under
  any form of sponsorship must maintain the
  University's open teaching and research
  philosophy and must adhere to a policy that
  prohibits secrecy in research. However, in cases
  involving United States government
  classification, or in any other case clearly
  involved exceptional circumstances, the
  chancellor is authorized to waive this
  requirement if it is in the national or
  institutional interest to do so. All such
  agreements must be reported in writing to the
  president prior to their execution.

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Criteria for an Exception to the Publication
Policy

• Signed informed consent from PI with signed
  endorsement by Dept. Head and Research Dean
• There can be no impact on any students academic
  program
• Depending on the export control requirements of
  the award, the project may have to be performed
  only by US citizens or permanent residents.

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These are still EXCEPTIONS

• SPARCS contract negotiators will continue to work
  with both sponsoring agencies and prime
  contractors to negotiate acceptable language.
• Policy exceptions will be initiated if and when
  attempts at negotiation have failed.

13
Standardizing the Process

• Established criteria for exceptions.
• Created a fill in the blank exception request
  for PIs that prompts for required information
  and has signature blocks for PI, Dept Head, and
  Research Dean
• Created a fill in the blank letter format for
  the Chancellor to notify President Broad as
  required by policy.

14
Whats Next???

• Mixed bag. Army appears to backing off.
• Air Force not moving.
• Department of Homeland Security???
• If there is another attack

15
Epilogue

• One of the worst possible scenarios would be a
  set of vague definitions that are open to diverse
  interpretations on both sides. How do you parse
  "sensitive but unclassified?"
• The science community does not want to
  jeopardize national security any more than the
  security community wants to paralyze the most
  important driver of the nation's economy and its
  national defense. This seems then to be common
  territory for both sides of the debate to share
• "Scientific Freedom and National Security
  Devil's Bargain or Dual Responsibility"
• Dr. Rita R. ColwellDirectorNational Science
  Foundation Annual MeetingUniversities Research
  Association Washington, DC
• January 30, 2003
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