Resources for SRAs - EC
The conduct, products, and results of fundamental research conducted at U.S. institutions of higher education are generally excluded from federal "deemed export" controls in accordance with National Security Decision Directive 189 (commonly known as the "fundamental research exclusion").
Fundamental research is defined to mean basic and applied research in science and engineering conducted at accredited institutions of higher learning in the United States. The results of which are ordinarily published and shared broadly within scientific community and are distinguished from research results which are restricted for proprietary reasons or is subject to government access or dissemination controls.
University research will not be deemed to qualify as Fundamental Research if: (1) the university or research accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the university or the researcher.
Additionally, the Fundamental Research Exclusion does not cover export controlled equipment, research conducted outside of the U.S. or research collaborations with listed prohibited or debarred parties or transactions with embargoed and sanctioned countries.
Fundamental Research as defined under the Export Administration Regulations (EAR) and the International Traffic and Arms Regulations (ITAR)
The "fundamental research" definition in the EAR is consistent with that in NSDD 189. Publicly available technology and software that arises during, or results from, fundamental research is excluded from the scope of the EAR's regulatory authority. Under the EAR, the results of fundamental research are excluded from the scope of the EAR regardless of whether or not they are published.
The ITAR includes "fundamental research" within the definition of public domain and therefore the resulting information will fall outside the scope of regulation, except when provided as part of a defense service. University research will not be considered fundamental under the ITAR if the university or its researchers accept other restrictions on publication of the resulting scientific and technical information; or the research is funded by the U.S. Government and specific access and dissemination controls apply to the results.
Although the definition of fundamental research in the ITAR varies slightly from that expressed in NSDD 189 it has essentially the same meaning. However, given the placement of the definition within "public domain" and its express limitation to "information which is published and which is generally accessible to the public" unpublished fundamental research results may not be considered to be in the public domain unless approved for unlimited public release by the cognizant U.S. government agency.
Another major difference between how the EAR and ITAR address fundamental research is that the ITAR restricts it to performance at "accredited institutions of higher learning in the United States". Under the EAR fundamental research it may occur at facilities other than U.S. universities. However, only university fundamental research is restricted to performance within the United States.
The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.