1700 Lomas Blvd. NE, Suite 2200
1 University of New Mexico Albuquerque, NM 87131-0001
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Fundamental research means basic and 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." - National Security Decision Directive 189 (NSDD)
Under ITAR, university research will not qualify as fundamental research if:
The institution 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 or to insure that publication will not compromise patent rights of the sponsor; or
The research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
EAR Part 734.6 - "Assistance available from BIS for determining licensing and other requirements" and EAR Part 734.7 - "Published information and software" explain a little more about how to identify whether a commodity, software, technology or activity is subject to export controls under the EAR.
Non-Disclosure Agreements and Confidentiality Agreements are permissible as long as they are outside of the research program and do not affect the intellectually significant portions of that research.Â The disclosure restriction must not affect the ability to publish the research results.
Confidential or proprietary information subject to a Confidentiality or Non-Disclosure Agreement (NDA) is covered by export controls and you may be required to obtain a license.
What is the fundamental research exclusion for universities?
Fundamental research does not require an export license. Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for fundamental research:
- As long as there are no restrictions on publication of the research or other restrictions on dissemination of the information or, in some cases,
- As long as the research or information is made public or is intended to be made public.
It should be noted that the Fundamental Research Exemption applies only to the dissemination of technical data and information, not to the transmission of material goods. The exemption is more broadly interpreted under the EAR than under ITAR.