Research Administration Office

University of California

Memo Operating Guidance

No. 85-25

October 30, 1985

Subject: National Policy on Transfer of Scientific, Technical and Engineering Information and Selected Agency Statements on Publication of Research Results

Enclosure I is the memorandum from the White House transmitting the National Policy on the Transfer of Scientific, Technical and Engineering Information to selected Federal agencies.

Enclosure 2 is a copy of the October 1, 1984 Department of Defense memorandum regarding the Publication of the Results of DOD Sponsored Fundamental Research which included and was based upon the previous draft national policy. The final policy is substantially the same as the draft policy, except "Engineering" has been added to the title, a definition of fundamental research has been added to Section I, and the last sentence of Section III has been qualified with "except as provided in applicable U.S. Statute" in the final policy.

Enclosure 3 is a copy of the August 8, 1985 memorandum from Director Ionson of the Innovative Science and Technology Office (IST) of the Strategic Defense Initiative Organization (SDIO) regarding Reporting the Results of SDIO Sponsored Innovative Science and Technology (IST) Research. The, policy states that SDI research conducted at universities will be considered fundamental research pursuant to the new national policy. Director Ionson states that the word "normally" in the first sentence of paragraph 3 refers to situations where the Principal Investigator might want to seek advice about publication and that the last sentence beginning with "however" would not reasonably apply to universities, only to industry, because university basic research is not "unique...to defense".

Enclosure 4 is a statement prepared by the University Office of Research and Public Policy on SDI (Strategic Defense Initiative) Policy and Funding of UC Research.

Consistent with the national policy, it is expected that Federal agencies will not attempt to place restrictions upon the conduct or reporting of Federally-funded fundamental research that has not received national security classification. In the event that agencies propose restrictions upon the dissemination of the results Of unclassified research, we would appreciate hearing from you about the proposed restrictions so that we can share such cases among the campus Contracts and Grants Offices as well as inform the Senior Vice President--Academic Affairs about agency implementation of the national policy.

Refer: Barbara Yoder

ATSS 8-582-2886

(415) 642-2886

Subject Index: 01, 11, 20

Organizational Index: F-010, F-175

David F. Mears

University Contracts and Grants

Coordinator

Enclosures

cc;

Vice Chancellors for Research

Assistant Vice President Moore

Laboratory Contracts and Grants Officers

Director Kane

Director Cole


THE WHITE HOUSE

September 25 , 1985

MEMORANDUM FOR THE VICE PRESIDENT

THE SECRETARY OF STATE

THE SECRETARY OF THE TREASURY THE SECRETARY OF DEFENSE THE ATTORNEY GENERAL

TEE SECRETARY OF COMMERCE THE SECRETARY OF ENERGY

THE DIRECTOR OF CENTRAL INTELLIGENCE

THE DIRECTOR, OFFICE OF SCIENCE AND TECHNOLOGY

POLICY THE DIRECTOR, INFORMATION SECURITY OVERSIGHT

OFFICE THE DIRECTOR, NATIONAL SCIENCE FOUNDATION

SUBJECT: National Policy on the Transfer of Scientific, Technical and Engineering Information

The President has approved the attached National Security Decision Directive -on the Transfer of Scientific, Technical and Engineering Information.

In implementing this directive it is important to remember that this NSDD preserves the ability of the agencies to control unclassified information using legislated authority provided expressly for that purpose in applicable U.S. statues.

FOR THE PRESIDENT:

Attachment

NSDD-189


THE WHITE HOUSE

September 21, 1985

NATIONAL POLICY ON THE TRANSFER OF SCIENTIFIC, TECHNICAL AND ENGINEERING INFORMATION

I. PURPOSE

This directive establishes national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories. Fundamental research is defined as follows:

"Fundamental research' means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished-from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons."

II. BACKGROUND

The acquisition of advanced technology from the United States by Eastern Bloc nations for the purpose of enhancing their military capabilities poses a significant threat to our national security. Intelligence studies indicate a small but significant target of the Eastern Bloc intelligence gathering effort is science and engineering research performed at universities and federal laboratories. At the same time, our leadership position in science

and technology is an essential element in our economic and physical security. The strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.

In 1982, the Department of Defense and National Science Foundation sponsored a National Academy of Sciences study of the need for controls on scientific information. This study was chaired by Dr. Dale Corson, President Emeritus of Cornell University. It concluded that, while there has been a significant transfer of U.S. technology to the Soviet Union, the transfer has occurred through many routes with universities and open scientific communication of fundamental research being a minor contributor. Yet as the emerging government-university-industry partnership in research activities continues to grow, a more significant problem may well develop.

III. POLICY

It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally-funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification. Each federal government agency is responsible for: a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants, contracts, or cooperative agreements for potential classification. No restrictions may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes.


THE UNDERSECRETARY OF DEFENSE

RESEARCH AND ENGINEERING

MEMORANDUM FOR ASSISTANT SECRETARY OF THE ARMY (RESEARCH, DEVELOPMENT AND ACQUISITION)

ASSISTANT SECRETARY OF THE NAVY (RESEARCH, ENGINEERING AND SYSTEMS)

ASSISTANT SECRETARY OF THE AIR FORCE (RESEARCH, DEVELOPMENT AND LOGISTICS)

DIRECTOR, DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

DIRECTOR, DEFENSE NUCLEAR AGENCY

SUBJECT: Publication of the Results of DoD Sponsored Fundamental Research

Reference DoD Directive 2040.2, "International Transfers of Technology, Goods, Services, and Munitions."

This memorandum defines "fundamental research" in the context of the Administration's recent draft national policy on. the . transfer of scientific and technical information (attachment 1). The statement requires that, consistent with existing statutes, no

.controls other than classification may be imposed on fundamental research and its results when performed under a federally supported contract. I would like the policy to be applied consistently to all DoD sponsored research. The policy, however, does not and cannot remove the necessity for sound judgment by all concerned.

Experience shows that attempts to define the terms "basic", "applied", or "fundamental" by elaborating the concept do not necessarily sharpen distinctions for decision making. Simple , unambiguous characteristics, though not perfect, are more useful discriminants. For DoD purposes the decision whether a particular research activity is or is not fundamental will be determined primarily by considering the following easily identified characteristics: (1) performer (for example, university, industry, in-house), (2) budget category (for example, 6.1, 6.2), (3) sponsoring DoD entity, (4) special contractual provisions.

The new policy addresses contracted research, which in the context of DoD is extended to include grants. Unclassified contract research supported by 6.1 funding shall be considered "fundamental." Similarly, unclassified research performed on campus at a university and supported by 6.2 funding shall with rare exceptions be considered "fundamental;" where there is a high likelihood of disclosing performance characteristics of military systems, or of manufacturing technologies unique and critical to defense, more restrictive contractual clauses may be agreed to by the contracting parties prior to effecting the contract. Contract research performed in off-campus university facilities that is not 6.1 funded generally will not be considered "fundamental."

Furthermore, in order to ensure reasonably consistent treatment for the publication of the results of fundamental research performed in DoD laboratories and components, the guidance provided in Attachment 2 will be followed closely.

In no case may further interpretation of this policy result in more restrictive conditions. In case of disagreements about the nature of research content or the applicability of any of the above policies, differences should be resolved by the Service or Agency providing funding support, and if this fails to result in a resolution, individual cases or questions may be referred to Subpanel B -"Research and Development", as provided for in the referenced directive.

Attachments


NATIONAL POLICY ON THE TRANSFER-OF SCIENTIFIC AND TECHNICAL INFORMATION

(Draft of June 15, 1984)

I. PURPOSE

This directive establishes national policy for controlling the flow of science and technology information produced in fundamental research at colleges, universities, and laboratories under contract to U.S. government agencies.

II. BACKGROUND

The acquisition of advanced technology from the United States by Eastern Bloc nations for the purpose of enhancing their military capabilities poses a significant threat to our national security. Intelligence studies indicate a small but significant target of the Eastern Bloc intelligence gathering effort is science and engineering research performed at universities and federal laboratories. At the same time, our leadership position in science and technology is an essential element in our economic and physical security. The strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.

In 1982, the Department of Defense and National Science Foundation sponsored a National Academy of Sciences study of the need for controls on scientific information. This study was chaired by Dr. Dale Corson, President Emeritus of Cornell University. It concluded that, while there has been a significant transfer of U.S. technology to the Soviet Union, the transfer has occurred through many routes with universities and open scientific communication of fundamental research being a minor contributor. Yet as the emerging government-university-industry partnership in research activities continues to grow, a more significant problem may well develop.

III. POLICY STATEMENT

It is the policy of this administration that the mechanism for control of fundamental research in science and engineering at colleges, universities and laboratories under contract to U.S. Government Agencies is classification. Consistency of this policy with applicable U.S. Statutes must be maintained. Each federal government agency is responsible for: a) determining whether classification is appropriate prior to the award of a research grant or contract and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants or contracts for potential classification. No restrictions may be placed upon the conduct or reporting of fundamental research that has not received national security classification.

ATTACHMENT 1


PUBLICATION OF THE RESULTS OF DOD SPONSORED FUNDAMENTAL RESEARCH PERFORMED IN GOVERNMENT LABORATORIES AND COMPONENTS

Reference DoDD 5230.9, Clearance of DoD Information for Public Release, April 2, 1982.

Department of Defense and other Federal Government laboratories perform much of the R& D sponsored by DoD. The Department has developed procedures for reviewing DoD-generated documents for publication (referenced above), to determine whether they are technologically sound, are consistent with DoD policy, or contain classified information, or critical military technology. These procedures are designed to protect our technological investments from foreign exploitation without impeding our own technological progress.

In view of the new national policy on the publication of unclassified contracted fundamental research, and its implementation in the aforegoing memo, this attachment provides guidelines to ensure consistent and uniform treatment for DoD sponsored fundamental research performed in DoD and other Government laboratories and components.

R& D papers that are closely related to military operations and systems deserve close scrutiny before release. However, application of extensive review procedures to the results of fundamental or generic research slows progress and thereby reduces the effectiveness of research investments.

Research performed under budget category 6.1 shall be considered to be fundamental research not containing any critical military technology except in rare and exceptional cases, as for example where there is a high likelihood of disclosing performance characteristics of military systems, or of manufacturing technologies unique and critical to defense. When a request for approval to publish the results of fundamental research is received, it shall be reviewed and a decision made in accordance with DoDD 5230.9 (referenced above), by the originating DoD laboratory or component within 20 working days of receipt of request to publish. In exceptional cases a final decision may be requested from the Office of the Assistant Secretary of Defense (Public Affairs) for resolution. In the latter case, the originating organization must include a proposed action to OASD(PA), and OASD(PA) shall confirm or overrule the proposed action within 5 working days of receipt. The total time for resolution shall be no-more than 30 working days.

Consistent with DoDD 5230.9, all research papers arising out of non-critical military technologies in budget category 6.2 shall be treated in the same way as 6.1 research. It is imperative that laboratory directors and other DoD component heads exercise their responsibility to make decisions on all non-critical military technologies, and pass on for headquarters review only those publications dealing with truly critical technologies. "Critical" implies special or unusual and must be applied selectively; other useful (but not critical) military technologies will be processed more simply and more speedily at the local level. It is anticipated that in the case of generic 6.2 research (i.e., research not related to specific military systems), all decisions on publications, with only few exceptions, will be made at the laboratory director or equivalent level. All such decisions should be documented in a simple, uniform and consistent manner.

Commanding officers and technical directors should make sure that they are fully cognizant of current DoD directives and instructions, in particular those dealing with distribution markings and dissemination controls, to enable them to exercise prudent judgment. If you have any questions or concerns, please direct them to the International Technology Transfer Subpanel B on Research and Development (see DoD Directive 2040.2).


SDIO/IST

OFFICE OF THE SECRETARY OF DEFENSE

WASHINGTON, D.C. 20301

MEMORANDUM FOR DEPUTY DIRECTOR FOR TECHNOLOGY, DARPA

DEPUTY DIRECTOR OF SCIENCE AND TECHNOLOGY, DNA STRATEGIC DEFENSE COMMAND PROGRAM MANAGER, OCSA DIRECTOR, STRATEGIC PROGRAMS, OASN(RE& S) SPECIAL ASSISTANT FOR SDI, DCS/RDA, HQ USAF

SUBJECT: Reporting the Results of SDIO Sponsored Science and Technology (IST) Research

Innovative

The security of the United States depends on an effective defense, of which the Strategic Defense Initiative is a potential future major component. Its ability to cope with future threats depends on how progress is made through Innovative Science and Technology (IST) research. Openness in fundamental research promotes progress toward application of research results.

The conduct and reporting of research performed on university campuses when sponsored by the IST Office of the SDIO, although funded out of budget category 6.3, will be treated as "fundamental research."

Decisions regarding publication of the results of unclassified. IST research performed on university campuses will normally be the responsibility of the university author. However, where there is likelihood of disclosing operational capabilities and performance characteristics of planned or developing military systems, or technologies unique and critical to defense programs, the contract will stipulate that the responsibility for the release of information resulting from IST research belongs to the sponsoring office.

JAMES A. IONSON

Director, Innovative Science and Technology

cc:

Director, SDIO

DUSD(Research and Advanced Technology), OUSDRE

Director, Research and Laboratory Management, OUSDRE


Enclosure 4

Belle Cole

Office of Research

and Public Policy

10/17/85

SDI (STRATEGIC DEFENSE INITIATIVE) POLICY AND FUNDING OF UC RESEARCH

Federal policy in SDI funding of University research makes clear that the research performed at universities - unclassified "fundamental" research -will not be subject to controls over publication or discussion of results and methods. Dr. James Ionson (Director, Innovative Science and Technology, (IST/SDIO) states in his policy document of 8/8/85:

The conduct and reporting of research performed on University campuses when sponsored by the IST office of the SDIO, although funded out of budget category 6.3, will be treated as "fundamental research".

"Fundamental research" has been defined in a recently issued policy, National Policy on the Transfer of Scientific, Technical and Engineering Information (9/21/85) to include basic and applied research in science and engineering the results of which ordinarily are published and shared broadly with the scientific community. This long awaited statement in effect exempts unclassified fundamental research from any national security restrictions that prevent open publication. Copies of the relevant Federal policies are attached.

So long as research sponsored by SDIO/IST does not require conditions inconsistent with. University policy, funding from this source is acceptable. Campuses continue to scrutinize these contracts carefully for this purpose.

The total amount of SDIO/IST funding of university research during the fiscal year 1984/85 (ending September '85) amounted to about $1.9 million according to Dr. Ionson's office. Five campuses received funding (UCB, UCLA, UCSD, UCI, UCSB) principally in the areas of physics, electrical engineering, and computer sciences. According to that office total SDIO/IST funding of research at universities during the fiscal year amounted to about $14 million.

We relied on information from Dr. Ionsons' office for data on UC funding because of the difficulty in getting an accurate reading of the existence of SDIO-funded projects on the campuses from University Contract and Grant officers because SDI is not a funding agency. Only funding agencies are so identified in our contract and grant system. Since SDIO/IST is not a contracting organization, they use other agencies for this purpose including ONR, The Air Force, Army, NASA, etc., much like the DARPA program does. These agencies might or might not make reference to SDIO in the contract. In the future (FY 1986) according to Ionson and his staff, each contract approved and authorized by SDIO/IST will include reference to the program in the title of the proposal.

A related imminent development is the Department of Commerce's intention to publish. for public comment, revisions of the Export Administration Act regulations (EAR) including the section on "technical data". The latter is expected to include a general license for information arising from fundamental research.