Export Controls – Export Provisions in Research Agreements

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

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

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?

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 252.204-7000 “(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. . . .”

Typical Export Clause #1 • Subcontract Paragraph: Compliance and Export ControlsEach 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.

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.

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. Army Research Laboratory Clause

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. . . .

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. Army Research Laboratory Clause

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. . . .

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.”

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.

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?

Export Controls – Export Provisions in Research Agreements

Export Controls – Export Provisions in Research Agreements

Presentation Transcript