Fundamental Research Exclusion and other Exemptions from Export Controls
Fundamental Research Exclusion and other Exemptions from Export Controls
Questions? Contact the Office of Sponsored Programs and Research Integrity (firstname.lastname@example.org) for assistance with export control questions before engaging in any activity that is not covered under one of the exclusions or exemptions below:
Export control rules and regulations can be onerous and complex to navigate. Fortunately, the "fundamental research exclusion" is applicable to most research activity. The fundamental research exclusion (FRE) is an exemption under export control rules embodied by the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). As stated in National Security Decision Directive 189 (NSDD189), fundamental research is "basic or 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."
Fundamental Research Exclusion in Research
In order to receive the benefit of protection under the FRE, the following elements must be applicable to the research project:
- Basic or applied research in science or engineering;
- The research must be conducted within the United States and not in any other jurisdiction;
- There may be no publication restrictions other than a limited review with the purpose of ensuring the protection of proprietary information, on the free and open publication of the research results in journals or other technical literature (regardless of whether there is any actual publication)
- There are no sponsor restrictions (e.g., an agency of the U.S. Government) on the nationality of personnel who can be involved in the research.
The Fundamental Research Exclusion does not apply to:
- Physical shipment of goods
- Use of equipment controlled by ITAR
- Specific Software with access limitations by the provider
- Encryption software or technology*
- Research which is not intended for publication
- Some research conducted outside the United States
The University of Colorado Colorado Springs Campus is eligible for the FRE in virtually all of its normal academic activities, including research. Safeguarding of the FRE is a primary concern for campus and is supported by the Office of Sponsored Programs and Research Integrity (OSPRI) via proper planning to ensure research activity falls under the exemption. Contact the OSPRI with questions about the FRE and ensuring compliance with export control requirements.
Note that under certain circumstances the institution may deem it appropriate to accept restrictions that will nullify the Fundamental Research Exclusion. By doing so the results of the research become subject to export controls regulations and dissemination to foreign nationals is restricted until the sponsor approves publication. As it is the policy of UCCS to abide by all export controls regulations, a plan must be put in place to manage any technology or software resulting from such export-controlled research.
Examples of restrictions which may nullify the fundamental research exclusion include:
- Research members accept restrictions or approvals for publications or the use of foreign nationals
- Pre-publication review with the right to withhold portions of the research results from publication (temporary pre-publication review allowed for proprietary/patent purposes)
- Approval required from sponsor to use foreign nationals on a project
- Research, or portions thereof, must be conducted at a secure facility
- Researchers and/or assistants must have a security clearance
- Research is restricted to U.S. locations for national security purposes
Note that a restriction that is accepted by informal means (email, conversation) is still a restriction even if it does not appear in a grant/contract
Some sponsors require additional compliance and controls related to national security. These controls impact fundamental research exclusions outlined in NSDD 189 when language is not explicitly included in a proposal for fundamental research.
Including the recommended language below will significantly speed up the contracting process if/when awarded and has the potential to avoid (1) prohibiting certain people from working on the project and/or (2) incurring significant information technology costs that may not have been included in the proposal budget. While it’s ultimately the PI’s decision whether or not to add this language, OSPRI strongly recommends including the language below on any proposals with DoD, DOE or Prime DoD Contractor sponsors; it does not hurt to include in all Fundamental Research Proposal Narratives.
Recommended Language: “The research described in UCCS’s proposal is Fundamental Research as described in National Security Decision Directive 189, dated September 21, 1985, and the USD (AT&L) memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008.”
In some cases, OSPRI may need to make a formal request for the Contracting Officer to confirm in writing that a project is fundamental research.
UCCS-developed encryption software must be freely downloadable by all interested members of the scientific community at no charge and without UCCS’ knowledge by whom or from where the data is being downloaded. This means no login requirement or other password or other authentication procedures. The government could view a login or other authentication requirement as an access control, and such a requirement could destroy the university’s ability to characterize the generated software as unrestricted fundamental research excluded from export controls.
Unlike the Export Administration Regulations (EAR) that address “dual-use” software and technology, discussed below, the munitions-specific ITAR does not require government notification before making the software publicly available.
Strong Encryption and US Person Technical Assistance: In addition to regulating the export of encryption code, the EAR also regulates US person activity with respect to strong dual-use encryption software and hardware. Without US government approval, US persons are prohibited from providing technical assistance (i.e., instruction, skills training, working knowledge, consulting services) to a foreign person with the intent to assist in the overseas development or manufacture of dual-use encryption software or hardware employing strong encryption code. This prohibition does NOT limit UCCS personnel from teaching or discussing general information about cryptography or developing or sharing encryption code within the United States that arises during, or results from, UCCS or other university-generated fundamental research.
Please contact Mike Sanderson at email@example.com if you have questions.
Public Domain and Publicly Available Exclusion
Information that is published and generally available to the public, as well as publicly available technology and software falls outside the scope of export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
Education Instruction Exception
Export control regulations do not apply to information released in academic catalog listed courses, or teaching labs associated with the courses. In other words, a faculty member teaching a course at the University may discuss what would otherwise be export-controlled technology in the classroom or laboratory without an export license, even if foreign national students are enrolled in the course. The exclusion stems from ITAR's recognition that "...information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain..." should not be subject to export control restrictions. The educational instruction exclusion does not apply to proprietary information, and certain information deemed classified or sensitive by the Federal government.