Fundamental Research
"Technology" or "software" that arises during, or results from, fundamental research and is intended to be published is not subject to export control regulations. When a project meets the definition of Fundamental Research (defined below), there are no restrictions for foreign nationals working on the project, and no export license would be required for discussing research methods and outcomes.
Fundamental Research is defined as research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons. The techniques used during the research are normally publicly available or are part of the published information.
- Research is not considered Fundamental Research when the laboratory, company, university or researcher restricts the publication of the outcome of the research or restricts the publication of the methods used during the research.
- Prepublication review by a sponsor of university research to ensure that the publication would not compromise patent rights or would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not void the status of the research as Fundamental Research. However, if the result of the review is to restrict publication, the Export Control Regulations will apply to that information for which publication is restricted.
- Technology or software resulting from U.S. government funded research that is subject to government-imposed access and dissemination or other specific national security controls qualifies as technology or software resulting from Fundamental Research, provided that all government-imposed national security controls have been satisfied and the researchers are free to publish the technology or software contained in the research without restriction.
- The Fundamental Research Exclusion applies to information and technology; it cannot be applied for export of physical items, such as shipping a pathogen or piece of equipment outside of the U.S.
Regulatory Reference for Fundamental Research
Export Administration Regulations Part 734.8
A: The role of the EAR is not to regulate fundamental research as such; it is to regulate the transfer of technology and software. Technology or software that arises during or results from fundamental research is generally not subject to the EAR (see § 734.8 for specific criteria). (Please note: Section 734.8 does not apply to physical objects such as pathogens or equipment.)
Fundamental research is described in the EAR as "research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons." The techniques used during the research are normally publicly available or are part of the published information.
- Example: There is a joint U.K./U.S. university-based research project on vector identification for Marburg virus with no restrictions on publication of the results of the research or of any technology released to the researchers. The research would be considered fundamental and the information resulting from this research, such as the results and methods, are not subject to the EAR. There would be no "deemed export" required for foreign nationals working at the U.S. university and no export license required for discussing research methods and outcomes between the two universities. An export license would be required for the export of the Marburg virus samples to the U.K. university.
A: Research is not considered fundamental research when the laboratory, company, university or researcher restricts the publication of the outcome of the research or restricts the publication of the methods used during the research. The following are examples of research that is not considered fundamental and information that becomes subject to the EAR:
- Proprietary research.
- Any research methods or outcomes of government-funded research that have been specifically restricted from publication. Only the information that is thus restricted would become subject to the EAR; the remainder of the research methods and outcomes that have not been subject to restriction would be considered information resulting from fundamental research.
- Any research methods or outcomes of government-funded research that have been communicated in violation of any condition that may exist in the funding instrument that requires prepublication security review of the research communication.
- Research methods or outcomes that an investigator voluntarily decides should not be communicated widely because of security concerns and therefore self-redacts from publication. Only the information that is redacted would become subject to the EAR; the remainder of the research methods and outcomes that have not been subject to self-redaction would be considered information resulting from fundamental research.
- Example: Government-funded researchers studying Bacillus anthracis accept national security prepublication review of their research. If the group complies with the review requirement and does not communicate this research without the required reviews, their research remains fundamental research. However, any of the information resulting from this research that is restricted from publication becomes subject to the EAR. Research methods and outcomes from the same project that are not subject to restriction would remain information resulting from fundamental research and not subject to the EAR. Decisions to restrict publication, regardless of the source of the decision, would mean that the technology not intended to be published is technology subject to the EAR. This decision is not retroactive, so it would not impose a license requirement for exports of the information that have already taken place, but may impose a license requirement for future exports of the information and future deemed export licenses as necessary.
A: No. The scope of EAR definition is fully consistent with the scope of NSDD-189 definition.
A: Yes, but, as with all rebuttable presumptions, it is rebutted if the research is not within the scope of technology and software that arises during, or results from, fundamental research as described in § 734.8.
A: It depends on the nature of the prepublication review. (See 734.8(b).) Prepublication review by a sponsor of university research to ensure that the publication would not compromise patent rights or would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research. If the result of the review is to restrict publication, the EAR applies to that information for which publication is restricted. For example, university-based research is not considered "fundamental research" if the university or its researchers accept, at the request of an industrial sponsor, other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed.
A: The initial transfer of information from an industry sponsor to university researchers is subject to the EAR where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided.
A: Technology or software resulting from U.S. government funded research that is subject to government-imposed access and dissemination or other specific national security controls qualifies as technology or software resulting from fundamental research, provided that all government-imposed national security controls have been satisfied and the researchers are free to publish the technology or software contained in the research without restriction.
A: Not if the research on which the foreign student is working is "fundamental research" under § 734.8 and any information released to the researchers is also intended to be published.
A: If the cooperative research arrangement authorizes the university to freely publish the proprietary information, then the sharing of the information is not a transaction to which the EAR applies. However, if your company and the researchers have agreed to a prohibition on publication, then you must determine whether a license is necessary and, if necessary, obtain a license or qualify for a license exception before transferring the information to the university. It is important that you as the corporate sponsor determine the proper classification and discuss with the university the nationality of any foreign nationals that will have access to the information, so that you may obtain any necessary authorization prior to transferring the information to the research team.
A: Probably not, provided the research results meet the criteria of "fundamental research" in § 734.8. Specifically, if you performed your research at the university, you intend to publish it, and you were subject to no contract controls on release of the research, your research would be "fundamental research." Information arising during or resulting from such research is not subject to the EAR (§ 734.3(b)(3)). You should probably assume, however, that your visitor will be debriefed later about anything of potential military value he learns from you.
A: No, if the information in question arose during or resulted from the same "fundamental research." You still should probably assume, however, that the Chinese national in China will be debriefed later about anything of potential military value he learns from you.
A: If you release technology subject to the EAR that requires a license under the EAR, you must obtain a license or qualify for a license exception prior to releasing the technology. If the technology that you release is "published" (see § 734.7) or it arose during or is a result of "fundamental research" (see § 734.8), then it is not subject to the EAR.
A: Not as long as it is information that arose during or resulted from "fundamental research" as described in § 734.8. If that is not the case - meaning the information is subject to the EAR - then that would be a deemed export and most likely would require a license from BIS prior to releasing the technology to the Iranian national.
A: Whether your research would be "fundamental" for purposes of the EAR would depend on the nature and purpose of the prepublication review. If the review is intended solely to ensure that your publications will neither compromise patent rights nor inadvertently divulge proprietary information that the sponsor has furnished to you, the research could still qualify as "fundamental." But if the sponsor will consider as part of its prepublication review whether it wants to hold your new research results as trade secrets or otherwise proprietary information (even if your voluntary cooperation would be needed for it to do so), your research would no longer qualify as "fundamental." For purposes of the EAR, it is whether the research results are ordinarily published and shared broadly that primarily determines whether the research counts as "fundamental" and so is not subject to the EAR.
A: In principle, no. "Fundamental research" is performed in industry, federal laboratories, or other types of institutions, as well as in universities. It remains the type of research, and particularly the intent and freedom to publish it that identifies "fundamental research," not the institutional locus.
A: You may need a license. The information will be subject to the EAR if the prepublication review is intended to allow your sponsor to withhold the results of the research from publication. However, if the only restriction on your publishing any of that information is a prepublication review solely to ensure that publication would not compromise any patent rights or proprietary information provided by the company to the researcher, your research may be considered "fundamental research," in which case you may be able to share information because it is not subject to the EAR. Note that the information will be subject to the EAR if the prepublication review is intended to allow your sponsor to withhold the results of the research from publication.
A: If the clearance from your company means that you are free to publish all the information without restriction, and you intend to publish it, the information is not subject to the EAR.
A: That is up to the sponsoring agency and the center's management. If your research is designated "fundamental research" as defined in the EAR within any appropriate system devised by your agency or management to control release of information by scientists and engineers at the center, it will be treated as such by the Commerce Department, and the research will not be subject to the EAR. Otherwise, you would need to obtain a license or qualify for a license exception, except to publish or otherwise make the information public.
A: Any export or reexport of information resulting from government-sponsored research that is inconsistent with any specific contract controls that you have agreed to will not be "fundamental research" and any such export or reexport would be subject to the EAR. The EAR does not restrict exports or reexports that are consistent with the specific national security controls. Thus, if you abide by the specific controls that you have agreed to, you need not be concerned about violating the EAR. If you violate those controls and export or reexport information as "fundamental research" under § 734.8, you may subject yourself to the sanctions provided for under the EAR, including criminal sanctions, in addition to administrative and civil penalties for breach of contract under other laws.
A: No, the Export Administration Regulations are not the means for enforcing the national security controls you have agreed to for such research that is not subject to the EAR; they do not restrict your ability to publish information. If such publication violates the underlying applicable contract entered into with the federal government, however, you may be subject to administrative, civil, and possible criminal penalties under other laws.
