October 11, 2005 - ASM Comments on DOD Proposed Rule on Export-Controlled Information and Technology

Ms. Amy Williams
Defense Acquisitions Regulation Council
IMD 3C132
3062 Defense Pentagon
Washington, D.C. 20301-3062

Re: Case No. DFARS 2004-D010

Dear Ms. Williams:

The American Society for Microbiology (ASM) provides this comment in response to the Notice of the Proposed Rulemaking to amend the Defense Federal Acquisition Regulation Supplement (DFARS) regarding export-controlled information and technology under Department of Defense (DOD) contracts. Proposed Rules, 70 Fed. Reg. 39976 (July 12, 2005) (DFARS Case 2004-D010). ASM appreciates the opportunity to comment on the proposed rule.

The ASM is the largest life science society in the United States with approximately 42,000 microbiologist members. ASM plays a major role in promoting progress in the microbiological sciences by publishing quality journals and books, convening meetings and workshops, developing educational, training, and public information programs, providing scientific advice to inform public policy, and promoting ethical conduct among practitioners of microbiology. ASM activities and programs serve not only its members and the advancement of science, but contribute to the public interest.

The ASM shares a number of concerns with much of the scientific community regarding the proposed rule. It appears that the proposed rule would require inclusion of a clause in DOD contracts that will unnecessarily disrupt the contracting process between the DOD and institutions best able to conduct research for DOD. Further, DOD has not identified a compelling reason for the establishment of the detailed requirements of the proposed rule. Indeed, it appears the proposal goes beyond the requirements of the current export control regulations. Moreover, the proposed rule fails to include, even by reference, the important fundamental research exemption. Finally, ASM is aware that the Department of Commerce is considering making changes to the rules related to deemed exports and that the Council on Governmental Relations has worked on language for a revised ersion in the DFARS case.

In summary, the proposed rule is unnecessarily restrictive; it fails to reference the fundamental research exemption; it may interfere with continuing services by key suppliers to the DOD; there currently exists uncertainty surrounding the rules to be implemented by the Bureau of Industrial Security; and, the Council on Governmental Regulations has prepared a more desirable alternative. For all these reasons, ASM recommends that the proposed rule be withdrawn at this time.

If DOD decides to proceed with a rule, ASM strongly encourages that the rule be tailored to meet specific concerns without inhibiting fundamental research or the relationship between DOD and key research institutions. A simplified clause specifying the need to comply with export control laws and regulations would accomplish this goal. Finally, if the DOD is unwilling to amend the provision to only require compliance with the law and regulations, ASM suggests that DOD look to the Council on Governmental Relations for advice and assistance for establishing a rule that best serves the interest of the public.

Again, ASM appreciates the opportunity to provide this comment to DOD.