Export Control: Agreements

Export Control and Agreements

UC’s primary strategy to protect its open and collaborative environment as a fundamental research-focused institution is to ensure that institutional agreements do not contain publication or foreign national restrictions—whether in the agreement terms and conditions or the activities outlined in the project—that would remove UC’s qualification for the Fundamental Research Exclusion (FRE).

What Researchers Can Do

Proposers should indicate in their proposal whether they believe the scope of the research included in their proposal is fundamental or not. While proposers should clearly explain the intended results of their research, the Government shall have sole discretion to determine whether the proposed research shall be considered fundamental and to select the award instrument type.

Work with the contracting officer to help them make an informed decision. Some steps that the faculty could take to encourage a fundamental research designation are:

  • Be concise and explicit in your proposal that this is fundamental research. Focus on the possible civil applications of the proposed work.
  • If the project would merit a graduate student’s thesis state this in the proposed statement of work. This reinforces the determination of fundamental research. Since most federal program officers understand the academic requirements for a graduate level thesis.
  • When citing prior research, look for open source and published works.
  • If the proposed research might change to a point where dissemination controls may become necessary, consider planning the project in clearly defined phases. Contracts can often be structured in such a way that the contracting officer can clearly delineate when one phase ends and another phase begins. Allowing UC Berkeley participation on the fundamental research phase, prior to any dissemination controls becoming required.
  • When discussing a project that may have national security implications, work with your federal program manager or industry partner to determine what information might need to be controlled and be specific. Discuss the parameters of where open publication may become an issue and include in your proposal an explanation of how any sensitive information will be avoided.

Taking these steps will strengthen the argument that the work should be free from limitations and reinforce the fundamental research protections.

What Contracting Officers Can Do

Contracting officers should contact the Export Control Office when there is any export control language, regardless, even if the project is designated as fundamental research or the language used is standard in an agreement.

Generally, there are two primary scenarios where export control language within an agreement would present an inherent risk to the University:

  1. The agreement from the outside party contains export control language that indicates the activity covered by the agreement may require restrictions or approval
  2. Agreements without export control language that protects UC from disclosure of export controlled items or information.

Apart from sections specifically marked “Export Control” or “Global Trade Compliance,” “Sanctions,” or “Anti-terrorism” that deal specifically with export control regulations, you should also consider export controls in relation to clauses involving:

  • Publication Review/Approval and Limitations on Participation by Foreign Nationals – The two most common issues with agreements that preclude UC’s use of the fundamental research exclusion are restrictions on publication and foreign national participation. When the sponsor or partner limits UC’s ability to freely publish the results of research or include foreign nationals, regardless of citizenship status, the FRE does not apply. Consult with your local Export Control Officer for guidance.
  • Proprietary Information – Proprietary Information (such as that received under a non-disclosure agreement (NDA) or confidentiality disclosure agreement (CDA) or certain types of export or dissemination controlled information, cannot be publicly released and is therefore “subject to” export control regulations. Information and data “subject to” export controls must be identified and reviewed to determine if the release of such information to foreign persons during the course of research or other university activities would require an export license.
  • Data Use, Protection and Cybersecurity requirements – Data Use or Software License Agreements often involve special data or software handling and use requirements. Typically, these requirements intend to protect the unlicensed or unauthorized release or disclosure of these items. Like proprietary information, data or software that cannot be publicly released is subject to export controls, and therefore any related regulatory and legal requirements. Additionally, these agreements often carry specific IT security or controls as part of the agreement terms.
  • Restricted or proprietary technology inputs and outputs – Most educational and research activities at UC involve published data or activities intended to result in the publishing of data for the scientific community. In certain cases, sponsored research or other activities may require the partner to provide UC with government or company proprietary information where unauthorized public disclosure or disclosure to foreign persons may carry specific regulatory, contractual, or other legal requirements. In research where such restricted or proprietary information is required as an “input,” UC researchers and administration must take special care to address any legal, regulatory and contractual requirements, while considering how the restricted inputs will influence or affect the research results, i.e., the “output.” For example, if a research project is specially informed by restricted information as an input, where the research results could be not have been formed without this information, the resulting research, data or developmental items, including equipment, material, software or encryption, may be restricted in a similar or more restrictive manner as the inputs. The alternative (and ideal case) is a purely fundamental research project where there are no controlled inputs, and there are no restrictions on the publication of results or participation of foreign nationals on the project.

In order to mitigate this risk, faculty and research administrators must be aware of the potential for this scenario and how to identify restricted proprietary information or technology through common sponsored research and university activities, including but not limited to:

  • Non-Disclosure Agreements (NDAs) and Confidentiality Disclosure Agreements (CDAs)
  • Data Use Agreements (DUAs) and Software License Agreements (SLAs)
  • Partnerships or Sponsorships from high risk government agencies, including the Department of Defense, Department of Energy, NASA and Intelligence Community (IC) agencies
  • Partnerships or Sponsorships from industry partners, most notably defense contractors working on Department of Defense or other programs of specific national security concerns

Other Basic/Fundamental Research Red Flags

  • Publication or dissemination restrictions in award or BAA/RFP
  • Foreign national restrictions or requirements for US citizens or US persons only
  • DoD contracts/DFARS: “Distribution Statement B, C, D…” or “DoD only”

For additional information you can contact the Export Control Office.