Export Controls

Research Review Process

A research administrator is in a unique position to view all facets of a research project from proposal to funding and can serve to identify possible export control issues at the earliest possible stage. Research administrators need to be aware of potential export control issues in order to recognize and bring them to the attention of the Export Control Officer.

This process involves a cooperative effort between the Office of Export Controls, the Sponsored Research and Sponsored Research Administrators. The role of each is integral to conducting a thorough review of research beginning at proposal stage through the life of the project (funding and contract provisions) to determine whether and how a particular research project is affected by export control regulations.

Proposal Stage

Early review gives the PI and the university a "heads up" that the project is a high risk for export control issues before foreign nationals are hired for the project. Proposal and RFP review allows the Office of Export Controls to highlight potential export control issues such as:

  • Foreign national restrictions
  • Sponsor publication restrictions
  • Shipping equipment outside the U.S.
  • Buying equipment that is export controlled
  • Use of proprietary or sensitive information
  • Encryption and the use of encrypted software
  • Export control language in the RFP
  • Advanced work with technology for military applications

Export Control Red Flags

  • Export control language
  • References to DoD or other high risk sponsors
  • References to prohibited countries
  • Sponsor is a foreign entity
  • Clear military component to research
  • References to "classified" information
  • The research requires travel to foreign countries
  • A member of the research team is a foreign national
  • The research involves technology with a strong potential dual-use (civilian, commercial and military) application

Evaluation Stage

The basic questions to ask include:

  • What items or technologies are being used?
  • Where are any items or technologies going?
  • Who will access the research, items or technologies?
  • What is the end use or application?

Contract Stage

Troublesome clauses are encountered both at the prime contract and subcontract level. If in a subcontract, many of these clauses (which could legitimately and correctly be required/applicable to the prime contractor) are not a required flow-down and/or not applicable to non-profit educational institutions governed by OMB circulars.

For academic institutions, the vast majority of research is shielded from export controls under the Fundamental Research, Educational Information and Public Domain exclusions. Delays in finalizing sponsored research agreements can be encountered when sponsors try to insert publication or access restrictions in agreements which would nullify the Fundamental Research Exclusion (FRE)

Troublesome Contract Clauses

Below are examples of some of the most commonly encountered troublesome clauses in contracts:

Disclosure of Information

Two versions of DFARS 252.204-7000

DFARS 252.204-7000 (DEC 1991)

The clause prevents the release of any data without sponsor approval. This is an older version of the clause which can be problematic for universities. Attempt to remove or replace with current version dated AUG 2013.

DFARS 252.204-7000 (AUG 2013)

The newest version of this clause is included as boilerplate for most DOD contracts. This clause does have a section which allows publishing for fundamental research performed at U.S. academic institutions. If this clause is included, the project will need to be classified as fundamental research in writing from the DOD program officer to allow publication and dissemination of information without restriction. Contact the Export Control Officer for further review and assistance in classification of fundamental research.

Export Controlled Items

Two Versions of DFARS 252.204-7008

DFARS 252.204-7008 - Requirements for Contracts Involving Export-Controlled Items (JUL 2008)

This is included in R&D and services contracts when the parties anticipate that "in the performance of this contract, the Contractor will generate or need access to export-controlled items." The inclusion of this clause indicates the need for export control review. Please inform the export control officer.

DFARS 252.204-7008 - Export-Controlled Items (April 2010)

This version is simply a notice that the institution must comply with applicable US export laws. The April 2010 version will appear in many solicitations and contracts and does not indicate the presence or absence of export controlled information, so it is important to be clear which version of the clause is being applied. The April 2010 version of this clause is ok to accept.

Drug Free Workforce

DFARS 252.204-7004 (SEPTEMBER 1998) mandates drug testing for workers who have access to classified research or "other research deemed sensitive" by the contracting officer. It requires the contractor to establish a program for random drug testing of employees. The ±«Óãtv cannot agree to this clause. Please have it removed or substitute for FAR 52.223-6 (MAY 2001) Drug Free Workplace.

Safegaurding of Unclassified Controlled Technical Information

DFARS 252.204-7012 (November 2013) is mandatory in all new DOD contracts and results in the requirement of additional IT security controls if unclassified controlled technical information is exchanged during the course of the contract. This is a strong indication that the work will be export controlled and require a Technology Control Plan. Send contracts containing this clause to the Export Control Officer for further review.

Security Requirements

FAR 52.204-2 allows for changes to security classification during the contract performance period. Substitute Alt I specific for universities which allows for termination of contract if security classification cannot be met.

Special Works

FAR 52.227-17 prevents the release, distribution and publication of any data first produced in the performance of the award. This is considered a publication restriction which can void FRE. Substitute Alternate IV whenever possible or have removed.

Approval of Foreign Nationals Performing under Contract

ARL 52.004-4400 - Approval of Foreign Nationals Performing under Contract required. This is a foreign national restriction and voids FRE. Please inform the Export Control Office when this clause is included in a contract. A technology control plan may be required.

Equipment and Technical Data Generated Controlled by ITAR

AFMC 5352.227-9000 - Equipment and technical data generated controlled by ITAR. Export license required before foreign nationals can work on research project. Please inform the Export Control Officer if this clause is included in a contract.

Sensitive Foreign Nations Controls

DEAR 952.204-71 - Sensitive Foreign Nations Controls (MAR 2011) - This is a foreign national restriction and voids FRE. Please inform the Export Control Office when this clause is included in a contract. A technology control plan may be required.

Export Control Red Flags

  • Publications restrictions, including approvals
  • Foreign National restrictions
  • Requirements for security plans
  • Statement that proprietary or export controlled information will be provided
  • Non-disclosure agreements are included
  • Requires delivery of a prototype
  • Requires foreign travel or shipment of research results

High Risk Sponsors

  • Department of Defense, including all agencies, labs, and branches of the armed services;
  • Department of Energy;
  • Department of Homeland Security;
  • National Aeronautics and Space Administration (NASA)
  • Intelligence Agencies
  • Corporate Sponsors including Defense Contractors
  • Foreign Corporate and Government Sponsors

High Risk Areas of Research

  • Engineering
  • Materials Technology
  • Remote Sensing, Imaging and Reconnaissance
  • Navigation, Avionics and Flight Control
  • Robotics
  • Propulsion System and Unmanned Air Vehicle Subsystems
  • Telecommunications/Networking
  • Sensors and Sensor Technology
  • Information Security/Encryption
  • Marine Technology