DOD's Proposed Changes to DFARS Highly Unpopular in All Corners of Federally-Funded Research Community
By Mel Myers, Esq.
The Department of Defense's (DOD) proposed changes to the Defense Federal Acquisition Regulations Supplement (DFARS) to protect export-controlled information and technology was the subject of withering criticism by commenters from academia, government research institutions and military contractors.
The proposed changes to the DFARS, published in the Federal Register on July 12, 2005 (DFARS 2004-D010), was intended to impose increased controls on the access to export-controlled information and technology by foreign citizens and foreign nationals. Highly publicized cases, such as Dr. Abdul Qadeer (A.Q.) Khan's theft of sensitive technology from a commercial lab in The Netherlands in the 1970s, that gave a huge lift to Pakistan's successful production of a nuclear weapon, have sparked renewed concern among high-technology nations that their foreign-born researchers could be threats to national security. DOD conducted a study that included visits to twenty of the target facilities(federally funded research and development center facilities, military contractors and universities) and determined that export-controls were not being adequately adhered to or were not properly understood (The Bureau of Industry and Security (BIS) has made similar findings), which prompted the proposed changes to the DFARS.
The proposed changes to the DFARS would impose a number of new requirements on government contractors in order to prevent the unauthorized transfer of export-controlled technology or information to foreign nationals in the U.S. In addition, DOD contracting officers would be charged with identifying all export-controlled technology and information in the contract with the federally funded entities.
In their comments on the proposed change, industry and academia (more than 130 comments were submitted) universally condemned the proposed amendment and its implementing language as "unworkable," "unpoliceable" and dangerous to DOD's "ability to access the science and technology needed to defend this nation." Commenter after commenter asserted that the new regulations would be extremely burdensome and costly, cause innumerable conflicts with existing regulatory regimes (e.g,. EAR and ITAR), and would put contracting officers at DOD in positions where they will have to make decisions based on regulations far outside of their area of expertise. Many of the comments noted that trained officers at BIS and the State Department's Directorate of Defense Trade Controls (DDTC) are far more skilled and versed in the intricacies of export controls than those at DOD. Universities were particularly critical of the proposed changes, arguing that it would make impossible the recruitment and open exchange of ideas with foreign scientists that have given the U.S. the technological advantage it enjoys presently. Many universities also noted that foreign scientists have all the technological know-how and access to equipment already to far surpass the U.S. in many if not most technological fields.
Finally, and perhaps most importantly to the fate of the proposed rule, many commentators declared that the proposal was illegal because it violated the Presidential Directive on the Transfer of Scientific, Technical and Engineering Information (Directive NSDD-189) that was implemented during the Reagan Administration and has been embraced by all subsequent administrations. The policy states, in part, that: "No restrictions may be placed upon the conduct . . . of federally-funded fundamental research that has not received national security classification." Many commentators argued that the proposed changes to the DFARS would violate Directive NSDD-189 because they prohibit foreign scientists and foreign nationals (including permanent residents of the U.S) from having access to basic scientific equipment without complying with non-classified export licensing procedures. While DOD has indicated that they will take all comments received into consideration in drafting a final rule, DOD has not announced when such a rule will be issued.
See http://emissary.acq.osd.mil/dar/dfars.nsf to view the public comments submitted to DOD on the proposed rule.
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