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 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:
- 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); and
- 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 goods
- Research which is not intended for publication
- Research conducted outside the United States.
The University of Colorado Denver | Anschutz Medical Campus is eligible for the FRE in virtually all of its normal academic activities, including research. Safeguarding of the FRE is a primary focus of the Office of Regulatory Compliance in coordination with the Office of Grants and Contracts and proper planning is needed to ensure research activity falls under the exemption. Contact the export compliance office with questions about the FRE and ensuring compliance with export control requirements.
Public Domain and Publically 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.
Decision Tree for Application of Export Control Regulations
Exclusion Outside the U.S.