CRA Comments on DOD Export Regulations

The Department of Defense has proposed a change to its regulations that would strengthen requirements for the control of export-controlled technologies for DOD research contractors, including universities. The proposed rule would require contractors to have an export control program that includes regular audits and training, segregated workplaces for export-controlled technologies, and “unique badging requirements for foreign nationals and foreign persons.”
While we at CRA understand and support the need for export control and deemed export regulation, we’re concerned that the proposed rule as it stands would make fundamental research subject to novel restrictions that could seriously impair the ability of colleges, universities, industrial and federal research labs to conduct fundamental research, which would have significant ramifications for America’s economic competitiveness and technological leadership in the world.
This concern stems in large part from the fact that the proposed rule doesn’t reference the fundamental research exemption, as found in a Reagan-era National Security Decision Directive still in effect (NSDD 189). Though it appears that the authors of the proposed rule didn’t intend to add new burdens for universities — rather, intended the change to clarify existing regulations — the worry is that without an explicit mention of NSDD-189, DOD agencies might incorrectly interpret compliance requirements to require access controls in all instances, even when fundamental research is being performed. There’s also a concern that the new rule would prompt DOD program managers and contract officers to include overly restrictive language in DOD contracts in order to protect themselves from any potential liability or culpability. As the Association of American Universities points out (pdf), this likely would exacerbate the already significant problems that universities have experienced with troublesome clauses in contracts from industry.
So, as we did when the Department of Commerce announced they were considering a similar rule change (and still haven’t decided), CRA filed comments (pdf) with DOD, along with more than 100 other respondents.
USACM also filed comments regarding the proposed rule, which you can find — along with a good blog post from David Padgham highlighting some of the other comments received — over at the USACM Technology Policy Blog.
We’ll keep track on the rule-making progress as it moves forward at both Commerce and DOD in the coming weeks….