Controlled Information & Fundamental Research

Export control regulations enumerated in the ITAR and the EAR govern physical items as well as technical data. Information which is not technical in nature (such as marketing material, financial statements, etc.) is not export controlled, even when that information is highly confidential. Non-public or confidential technical data (for example, drawings, reports, formulations, diagrams) are subject to export controls and may require a license before such information may be communicated or shared with foreign persons. The transfer of controlled information to foreign persons in the United States is known as a deemed export.

However, the regulations carve out circumstances where technical data and software is not subject to the regulations and is therefore unrestricted:

Fundamental Research Exclusion (FRE)

“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.

Practically, fundamental research means that no publication or citizenship restrictions are accepted from any sponsor (industry or government agency) by any means (prime contract or flow-down), explicitly or unofficially. A publication restriction is one in which a sponsor requires withholding of research results for any reason other than a) to make sure that no proprietary data provided to the PI is disclosed in the published research results or; b) the time necessary to file a patent application.

A sponsor’s general requirement that publication be withheld “pending review” or review for a period of time beyond what is reasonably required to filter out proprietary data would constitute a publication restriction and disqualify the project from FRE protection. A citizenship restriction limits research participation to U.S. persons or reserves the right to determine which researchers, by nationality, can participate in the project.

Much University research qualifies under the Fundamental Research Exclusion, and the resulting research data does not pose an export or deemed export risk when it is shared with foreign persons. However, whenever a Principal Investigator (“PI”) chooses to accept publication or foreign national restrictions on a research project, that project is subject to export controls. When a PI (or other individual related to the research project) becomes aware that a project may have such restrictions, they should immediately reach out to the Export Control Office for assistance. Export Control will help determine the level of control and develop a plan to help mitigate the risk. When necessary, the Export Office will also submit a license request to facilitate restricted research activities.

Published Information

“Published information and software” can be used to describe information that has been made available to the public without restrictions upon its further dissemination. Pursuant to §734.7 this type of information is not subject to the EAR. Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. This includes publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also includes the following:

• Readily available at libraries open to the public;
• Issued patents;
• Releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations.

Educational Information

“Educational information” is a phrase used by the Department of Commerce in §734.9 of the EAR. “Educational information” is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions. Certain types of information related to encryption software cannot be considered “educational information” and therefore are subject to the EAR even if they are released “by instruction in catalog courses and associated teaching laboratories of academic institutions.”