¶2870 Export Controls
In the early 1980s, the federal government imposed significant restrictions on the export to
foreign entities and persons of certain defense articles. These defense articles generally are
defined as computer hardware, technology, and biological materials information. The export
regulations are administered by two agencies: the Department of State, for the
International Traffic in Arms Regulations (ITAR), and the Department of Commerce, for the
Export Administration Regulations (EAR). At Commerce, the Bureau of Industry and Security
(BIS), formerly the Bureau of Export Administration (BXA), is the division responsible for
the determinations under the EAR. At State, the Directorate of Defense Trade Controls,
Bureau of Political-Military Affairs is the primary office responsible for the ITAR.
These regulations prohibit the unlicensed export of specific technologies for reasons of
national security (ITAR) or protection of trade (EAR) unless the fundamental research
exclusion (see ¶2873) is applicable. Under the regulations, an export can occur in two ways:
1. by the physical movement of a controlled item outside the United States, or
2. by the transfer of controlled data or information, whether outside or inside the
United States, to a foreign national. This second transfer is defined as a deemed
export.
(Note: The EAR describes its jurisdiction as "dual use." Dual use means that the items may
be used both in sensitive (e.g., military or nuclear) and other non-sensitive applications, as
compared to weapons and items strictly for military use, which are subject to the
jurisdiction of the Department of State, and items subject to the nuclear-related controls of
either the Department of Energy or the Nuclear Regulatory Commission.)
Important
It is critically important to recognize that the export can
occur not only outside the United States but also in the
"deemed export setting," i.e., inside the United States, to
foreign nationals who are not U.S. citizens or permanent
residents. See ¶2874. The restrictions on foreign nationals
at U.S. colleges and universities are at the heart of many
institutional concerns regarding the extent of and
compliance with the export regulations.
The EAR includes a very helpful series of questions and answers that provide concrete
examples of when information or hardware is subject to the Department of Commerce
regulations. See 15 CFR § 732.1. Although the ITAR contains no similar section, the State
Department will respond to queries about whether a technology is covered by the ITAR. See
¶2875.
The export regulations are statutorily based and apply whether the recipient receives
funding via a grant, cooperative agreement, or contract, and whether or not the EAR or
ITAR are cited explicitly in the award document. The consequences of violating the
regulations can be quite severe, ranging from loss of research awards to monetary penalties
and/or jail time.
1
¶2871 Export Control Terms
The following is a listing of terms used in the export control regulations:
Export controls. The EAR or the ITAR set out the regulations for defense articles, both
hardware and information. The EAR requires a license before the export of goods and
services identified on the Commerce Control List (CCL), 15 CFR § 774, Supp. 1. All other
items and technologies that meet the definition of the term "subject to the EAR" but are not
listed on the CCL are designated as "EAR99" and normally do not require an individual
license. The ITAR regulates defense articles and services related to technical data, which is
identified on the Munitions Control List, 22 CFR § 121. Information that is in the public
domain is not subject to controls.
Fundamental research. Fundamental research is basic or applied research in science
and/or engineering at an accredited institution of higher learning in the United States where
the resulting information is in the public domain.
Deemed exports. Deemed exports exist whenever a foreign national may be able to
access export-controlled items within the United States, thus requiring the university to
obtain licenses and impose access restrictions. If a technology is in the public domain (i.e.,
published), export controls generally do not apply.
Export. The term, export, includes the shipment of goods or items, electronic or digital
transmission of goods or items, release of specific technological data to any foreign national,
or the use by a foreign national of any covered technology.
Defense services. Defense services means furnishing assistance to foreign nationals in
development, manufacture, repair, testing, modification, operation, etc. of defense articles
or of technical data controlled under § 120.10 of the ITAR.
Defense article. A defense article is any item or technical data designated on the U.S.
Munitions List in § 121.1 of the ITAR.
Public domain information. Public domain information is information that is published
and generally accessible or available to the public
1. through sales at newsstands and bookstores;
2. through subscriptions that are available without restriction to any individual who
desires to obtain or purchase the published information;
3. through second class mailing privileges granted by the U.S. Government;
4. at libraries open to the public or from which the public can obtain documents;
5. through patents available at any patent office;
6. through unlimited distribution at United States conferences, meetings, seminars,
trade shows, or exhibitions, which are generally accessible to the public;
7. through public release (i.e., unlimited distribution) in any form after approval by the
cognizant U.S. government department or agency; and
8. through fundamental research.
¶2872 Recognizing When a Technology Is Controlled
2
The first hurdle for university researchers and administrators is to determine whether the
technology is subject to the export control regulations. A review of the list of restricted
technologies on both the Commerce Control List (CCL) in 15 CFR § 774, Supp. 1, and the
Munitions Control List (MCL) in 22 CFR § 121 makes it apparent that research
administrators may not make this determination unilaterally. In fact, the researcher should
be the most critical reviewer of the restriction lists.
If the technology is subject to export controls and requires a license, the next step is to see
whether the technology is destined for one of the countries on the U.S. embargo or
restriction of trade list. If this is the case, the policy of the United States is to deny licenses
or other approvals for shipment to these countries.
The Federal Acquisition Regulation (FAR) supplement to the Department of Commerce
regulations offers guidance on whether something is covered by the EAR. The questions and
answers in the EAR also provide concrete examples of when information or hardware is
subject to the regulations as well as clear answers to many of the routine questions that
arise about the EAR's application. (A question-and-answer format at 22 CFR § 730.8
provides basic information on how to review the EAR and determine your obligations. Part
732, entitled "Steps for Using the EAR," also guides the user through the regulations and
includes a decision tree. Supplement 1 to Part 734 also uses questions and answers to
provide concrete examples of technology and software that are subject to the EAR.)
Finally, the Commerce Web site has a set of frequently asked questions that provide useful
guidance. In general, whether an item requires a license depends upon an item's technical
characteristics, the destination, the end-use, and the end-user, and other activities of the
end-user. (See also ¶2876.)
The correct determination of whether the export regulations control a specific item of
research is particularly significant whenever a researcher wishes to ship a hardware item
overseas or, in some instances, to exchange information with foreign nationals who are not
permanent nationals of the United States.
¶2873 Fundamental Research Exemption
When export controls were enacted, institutions of higher education began discussions with
the government regarding the applicability of these export controls to basic research
conducted on campuses. Those discussions resulted in National Security Decision Directive
189 (NSDD) (see ¶3711) that defined basic or fundamental research as
basic or applied research in science and/or engineering at an accredited institution of higher
learning in the United States where the resulting information is ordinarily published and
shared broadly in the scientific community.
The directive distinguished fundamental research from research that results in information
that is restricted for proprietary reasons or pursuant to specific U.S. government access and
dissemination controls. College and university research would not be deemed fundamental
research if

the university or research 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
3

information provided to the researcher by the sponsor or to ensure that publication
will not compromise patent rights of the sponsor; or
the research is federally funded and specific access and dissemination controls
regarding the resulting information have been accepted by the university or
researcher. (See 15 CFR § 734.8 or 22 CFR § 120.11.)
(Note: The limited delay for review as discussed in the first item above is explicitly stated in
the EAR. While there is no explicit parallel statement in the ITAR, there is also no formal
language that would suggest a different policy for the ITAR.)
In practice, as long as an institution did not accept publication restrictions, the only practical
way to impose export restrictions on the research was to classify the project.
¶2873.1 Applying the Fundamental Research Exemption
Even when an item appears on the CCL or MCL, if the fundamental research exemption
applies, there is no requirement to obtain a license for an export (including a deemed
export). To assert the fundamental research exemption, the research agreement may not
permit the sponsor to approve or withhold from publication any of the information
developed in the course of the research. Often faculty and other researchers do not
understand the consequences of accepting controls on publication or dissemination. Unless
required by the regulations, prior approval or other restrictions on publication (except for
patentability review and/or review for a sponsor's previously provided proprietary
information) destroy the fundamental research exemption. For institutions, this is a critical
fact for faculty and other researchers.
Important
One of the key differences between the ITAR and EAR with
respect to fundamental research is the manner in which the
controlled data or technology may be placed in the public
domain. If the information subject to ITAR has been
published, government approval is required prior to the
release.In contrast, under the EAR, the fundamental
research exemption is available for information that has
been or is ordinarily published. Note that the ITAR language
was added in March 2002 in response to concerns from the
university community. (For further discussion, see ¶2879.
Figure 2879-1 contains the regulatory language regarding
fundamental research from each set of regulations.)
¶2873.1.1 'Published'
When NSDD-189 (see ¶3711) was issued in the mid 1980s, published generally meant in
written form, normally in a scientific or technical journal. However, today the term
"published" also includes issued patents, oral presentation in a public setting, and, most
importantly, information available on a publicly accessible Web site.
¶2873.1.2 Classification
4
When NSDD 189 was issued, the Department of Defense (DoD) was advised that
classification was the appropriate way to establish publication restrictions. This remains the
basic operating principle. In November 1, 2001, Dr. Condoleezza Rice, Assistant to the
President for National Security Affairs, reaffirmed the NSDD-189 policy (see ¶3713).
Institutions, however, are reporting attempts to impose publication restrictions on
nonclassified projects (see box in ¶2879). In June 2008, Under Secretary of Defense John J.
Young, Jr. issued a memo (see ¶3709) on “contracted fundamental research” stating “I
have determined that clarifying guidance is required to ensure that the DoD will not restrict
disclosure of the results of contracted fundamental research, as herein defined, unless the
research is classified for reasons of national security, or as otherwise required by statute,
regulation, or Executive Order.”
¶2873.1.3 Funding from Industrial Entities
The fundamental research exemption does not apply to the corporate sector. Consequently,
when an institution accepts research funding from an industrial or for-profit entity, the
institution needs to take special precautions. For example, as a subrecipient an institution
may be asked to accept export controls because the prime awardee is required to accept
the restrictions. An institution must carefully review and negotiate agreements that may
include such provisions because acceptance may impose unacceptable terms and conditions
and restrict access to the technology by certain students and researchers.
¶2873.1.4 Award Language
Universities should establish guidelines and policies on what language is acceptable in
contracts and grants relating to export controls prior to receipt of any specific award. This
will avoid time delays and unnecessary internal conflicts. Certainly language that requires
an institution to comply with federal export laws and regulations is acceptable, but language
that restricts — in advance of an export determination—the participation of foreign nationals
in an unclassified, unrestricted research project should not be acceptable under most
circumstances.
¶2874 Deemed Exports
In addition to recognizing whether a specific technology is on either of the restricted lists
and whether an institution may assert the fundamental research exemption, many faculty
and researchers must address the concept of the "deemed export." Under the regulations,
disclosure of export-controlled technology to a foreign national, such as a nonresident
foreign student or researcher, is the equivalent of actually exporting the technology to the
country of origin of the researchers (see, e.g., EAR, § 734.2(b)(2)(ii)). A release of
technology for export may occur when the item is available for visual inspection (e.g.,
blueprints, technical specs), exchanged orally, or made available by practice of application
under the guidance of persons with knowledge of the technology. This policy clearly may
cause severe difficulties for institutional research offices and laboratories because it implies
restricted access to written material, computer programs, and even to the research
laboratories. See ¶2879.
¶2875 Commodity Jurisdictional Rulings and Classification Requests
Sometimes it is unclear whether the State Department or the Commerce Department should
receive the license request or whether a license is required at all. If an institution is
5
relatively sure which agency has jurisdiction, a written request may resolve the problem of
whether a license is required and to whom a license application should be submitted.
The Bureau of Industry and Security (BIS), in the Commerce Department, will provide an
entity with an advisory opinion as to whether a license is required. Sections 734.6 and
748.3 of the Export Administration Regulations describe the process and the content of the
request. BIS cautions that in many instances, including those where the item is specially
designed, developed, configured, adapted, or modified for military application, the item may
fall under the licensing jurisdiction of the Department of State and may be subject to the
controls of the International Traffic in Arms Regulations (ITAR).
If the issue is which agency regulates the item, the regulations allow an organization to
contact the State Department's Directorate of Defense Trade Control (DDTC). The time
required for DDTC to research such a determination often is quite lengthy, and an institution
may want to start preparing a license application while awaiting a ruling. However,
according to the §120.4(e) of the regulations, the DDTC will provide a preliminary response
within 10 working days of receipt of a complete request for commodity jurisdiction. If after
45 days the DDTC has not provided a final commodity jurisdiction determination, the
applicant may request an expedited processing by submitting the request in writing to the
Director, Office of Defense Trade Control Policy.
The DDTC's Web site sets out the guidelines for filing a commodity jurisdiction request. The
guidelines state that processing time varies “depending on the complexity of the case,” but
that it usually takes less than 65 business days (95 calendar days) to complete the process.
¶2876 Securing a License
Securing a license is an extremely complex undertaking. In general, license requirements
depend upon an item's technical characteristics, the destination, the end-use, and the enduser, and other activities of the end-user. The EAR suggests that a potential application
have five facts:
1.
2.
3.
4.
5.
What is the item intended for export or re-export
Where it is going
Who will receive it
What will the recipient do with it
What other activities is the recipient involved in
The documentation requirements for license submission may be daunting, and an institution
that does not apply for an export license often may want to seek legal assistance. Few
institutions have export license counsels, and securing outside legal expertise in advance is
strongly recommended.
From an administrative perspective, the license application must be submitted by an
individual authorized by the college or university. This authorized individual, whom the ITAR
labels the empowered individual (see 22 CFR § 120.25), is the individual legally designated
by the institution in writing to sign license applications on behalf of the applicant. The ITAR
licensing process, for the most part, is now done using the online system called D-Trade.
The Commerce Department generally tries to make license determinations or issue licenses
in about two months, although the time period certainly can be longer. The State
6
Department processing time may be significantly longer and make take four to six months.
Within the State Department there is a process for an expedited license that can cut
processing time to approximately two months.
¶2877 Assuring Compliance
Some institutions have reported that industrial sponsors have required an ITAR compliance
program before the institution receives funds for research activities subject to the export
regulations. Although the ITAR does not contain compliance requirements, the DTC Web site
includes guidelines for a compliance program.
The guidelines actually provide an outline for a compliance manual and process and include
topics such as









organizational structure
high-level commitment and policy
identification, receipt and tracking of ITAR-controlled items/technical data
re-exports/retransfers
restricted/prohibited exports and transfers
recordkeeping
internal monitoring
training
violations and penalties
Additional Resources

Directorate of Defense Trade Controls “Getting Started” tips:
www.pmddtc.state.gov/documents/ddtc_getting_started.doc

Export Administration Regulations Marketplace: https://bxa.ntis.gov/
¶2878 OFAC Economic Sanctions
The Department of Treasury Office of Foreign Assets Control (OFAC) administers and
enforces economic sanction programs against countries and groups of individuals, such as
terrorists and narcotics traffickers. It has the legal authority to both freeze assets under
U.S. jurisdiction and to impose controls on certain transactions. The sanctions are specific to
each country and entities within those countries. At present, sanctioned countries include
the Balkans, Belarus, Burma (Myanmar), Cote d’Ivoire, Cuba, Democratic Republic of the
Congo, Iran, Iraq (limited), Liberia, North Korea, Sudan, Syria, and Zimbabwe, as well as
sanctions against narcotics trafficking, nonproliferation, terrorism, and diamond trading.
For colleges and universities, the impact of the OFAC requirements is the possibility of
restrictions or prohibitions on certain actions. That action is whether a person or entity is
providing something of value to these countries that is not on the exception list in the
country-specific sanction document. This "something of value" may come in the form of
transfer of funds, travel, conference participation, or receipt of benefits from membership in
an association. If the "something of value" is not on the exception list, OFAC requires a
license for the activity.
7
For example, under the Cuban Assets Control Regulations, 31 CFR Part 515, persons subject
to U.S. jurisdiction are prohibited from engaging in all unlicensed transactions in which Cuba
or a Cuban national has an interest, including transactions related to travel to, within, or
from Cuba. OFAC considers, on a case-by-case basis, the issuance of two-year specific
licenses to accredited U.S. academic institutions authorizing its students and employees to
engage in certain transactions involving educational activities in Cuba under the auspices of
the institution. In addition to the license, OFAC will require a specific institutional
authorization and certain informational and record keeping activities. Thus, an educational
activity sponsored by an institution in Cuba could be allowable, but only with an OFAC
license.
Another example involves conference participation. Travel to Iran is permitted by the
regulations (31 CFR Part 560), but goods, technology (including technical data or other
information subject to Export Administration Regulations), or services may not be exported,
re-exported, sold, or supplied, directly or indirectly from the United States or by a U.S.
person to Iran or to the Government of Iran. The regulations also prohibit the receipt of
personal communications (postal, telegraphic, telephonic, etc.,) that involve the transfer of
anything of value. A faculty member could participate in an international conference in Iran;
however, his/her institution could not provide financial support for the conference. In
addition, the faculty member's presentation would have to be placed in the public domain
prior to presenting it at the conference. One U.S. institution actually was fined by OFAC for
cosponsoring such a conference.
Memberships constitute another potential issue. For example, in January 2002, the Institute
of Electronic and Electronics Engineering (IEEE) journal editors informed its members that
OFAC had advised it that a license was required for style and copy editing of scholarly
articles submitted for publication by residents residing in some of the countries that fell
under the sanctions of the OFAC regulations. The issue surfaced when an Iranian scientist
submitted an article for publication.
In two separate letters issued in September 2003, OFAC noted that the importation and
exportation to any country of information and informational materials, whether commercial
or otherwise, was exempt from the regulations. However, OFAC stated that the exemption
does not encompass transactions related to information that was not fully created and in
existence on the date of the transaction or to any substantive or artistic alteration or
enhancement of information materials. It also does not apply to the provision of consulting
services. Thus, providing substantive peer review would require a license.
The IEEE challenged the ruling and on April 2, OFAC sent a ruling to the IEEE attorney,
exempting peer review, editing and publication of scholarly manuscripts from the OFAC
regulations. The ruling was further upheld when, in December 2004, OFAC removed all
restrictions on editing manuscripts from authors in Iran, Cuba, and Sudan. The ruling is
applicable to academic and research institutions and their personnel. However, OFAC
continues to retain jurisdiction over publishing and prohibits U.S. citizens from collaborating
on manuscripts from government officials in the embargoed countries.
¶2879 Current Issues
The resurgence of interest in the export control regulations — which started with the
transfer of commercial satellite technology to the State Department in 1999 and the
possibility that the ITAR would be amended to include not only the satellite, but also
8
fundamental research experiments flying on the satellite — continues to grow, and issues
continue to arise that are of significant interest and concern to colleges and universities.
Figure 2879-1: IG Reports
Two reports issued in March 2004 by two Offices of Inspector General (IG) prompted the
agencies to propose regulatory changes that threatened to have a profound effect on
colleges and universities and their compliance with the EAR and ITAR.
The IG of the Department of Commerce issued its report Deemed Export Controls May Not
Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S. (IPE-16176). Of
primary concern to institutions was the discussion of the "use" of EAR-controlled equipment
by foreign nationals at universities and the fundamental research exemption. The
Commerce IG believed that "technology relating to controlled equipment—regardless of
how use is defined—is subject to the deemed export provisions (and the requirement to
license foreign nationals having access to that equipment) even if the research being
conducted is fundamental.” The implications of this belief are enormous. For example,
items such as global positioning satellite equipment and fermenters, normally used in
university research, were included on the equipment-controlled lists, and, as such any
information on use and operation provided to a foreign national would be a deemed export.
The report also included a discussion of the fundamental research exemption and NSDD189 and suggested that the definition of fundamental research is vague and unclear.
The Department of Defense (DoD) Inspector General (IG) issued a report titled ExportControlled Technology at Contractor, University, and Federally Funded Research and
Development Center Facilities (D-2004-061). It recommended incorporating an export
control compliance clause in all DoD contracts, regardless of whether the fundamental
research exclusion would apply for the particular project funded by the contract. In fact,
the report referenced the fundamental research exclusion through a footnote only and
made no reference whatsoever to NSDD-189. It also recommended that DOD expand its
guidance to program managers and contracting officers to ensure that contracts identify
export-controlled technology and require access control plans including badging
requirements for foreign nationals, segregated work areas for controlled technology,
training, and the like.
Deemed Exports
On March 28, 2005, the Commerce Department's Bureau of Industry and Security (BIS)
published an Advanced Notice of Proposed Rulemaking (ANPR) on deemed export controls
requesting comment in these areas:



clarification of the definition of use of technology subject to the Export
Administration Regulations
use of a foreign national's country of birth as a criterion for deemed export licenses
modification of regulatory guidance on licensing technology to foreign nationals
working with government-sponsored research and research conducted in universities
All of these areas stemmed directly from the issues raised in the Commerce Inspector
General's 2004 report (see Figure 2879-1). Organizations from all sectors, not just
academia, filed comments with BIS and expressed concern that the change in the definition
of "use" would restrict the scope of fundamental research, and this and the other provisions,
such as the country-of-birth proposal, would have a chilling effect on U.S. research efforts
by all research entities. On May 31, 2006, BIS officially withdrew its ANPR, stating that the
current BIS deemed export licensing policy is appropriate, and the existing definition of
"use" "adequately reflects the underlying export controls policy rationale in the EAR."
9
To address complex questions related to an "evolving" deemed export policy, Commerce
created the Deemed Export Advisory Committee (DEAC) in 2006. The 12-member
committee was tasked with determining whether the deemed export licensing policy of the
United States most effectively protects national security while ensuring that the U.S.
maintains its leadership in technology innovation. The DEAC held quarterly open meetings in
2007 and solicited input from stakeholders. The DEAC released its final report in December
2007.
In the report, the committee recommends an overhaul in the U.S. approach to deemed
export controls. The transmittal letter accompanying the report states, “It is the
Committee’s principal conclusion that the existing Deemed Export Regulatory Regime no
longer effectively serves its intended purpose and should be replaced with an approach that
better reflects the realities of today’s national security needs and global economy. …
Contained herein is a proposed approach to the management of Deemed Exports that the
Committee believes is better suited to America’s needs in the Twenty-First Century.”
It is too soon to know whether the DEAC report will bring any real changes in export control
policy. However, the Bureau of Industry and Security has recently closed an extended
period for public comments on two DEAC recommendations: (1) whether the scope of
technologies on the Commerce Control List subject to deemed export licensing requirements
should be narrowed, and if so, which technologies should be subject to the requirements,
and (2) whether a more comprehensive set of criteria should be used to assess country
affiliation for foreign nationals with respect to deemed exports.
DoD Contractor Requirements
The Department of Defense (DoD) has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement to address requirements for complying with export
control laws and regulations when performing DoD contracts. The rule recognizes contractor
responsibilities to comply with existing Department of Commerce and Department of State
regulations. The rule adds two new clauses to be used when export-controlled items are to
be involved in the performance of a contract, or when there is a possibility that exportcontrolled items may come to be involved during the period of contract performance.
The interim rule supersedes one issued in 2005 and then reissued in 2006. The DoD 2005
rulemaking came in response to the 2004 DoD Inspector General’s recommendation that
the agency implement a new export control requirement (see Figure 2879-1). Among the
changes from the previous versions of the rule are the definition of “applied research,” as
well as other new definitions, and a provision giving the government the right to terminate a
contract if the situation arises after a contract award in which the contractor will generate or
need access to export-controlled items.
TIP
The Council on Governmental Relations and the Association
of American Universities jointly issued a report designed to
call attention to “troublesome clauses.” Troublesome
clauses are those that restrict the use of the research
results of federally funded projects. Developed with the
assistance of the Federal Demonstration Partnership, the
report contains nine recommendations to “significantly
10
improve” the burden these clauses impose. The report,
which surveyed the same 20 universities in 2003 and 2007,
found that the number of troublesome clauses that place
restrictions on certain kinds of government-funded research
rose from 138 in 2003 to 180 in 2007.
¶2879.1 The Fundamental Research Exemption
The language below represents the fundamental research exemption as stated in the EAR
and the ITAR. There has been much concern about the fundamental research exemption
under ITAR.
TITLE 15—BUREAU OF EXPORT ADMINISTRATION DEPARTMENT OF COMMERCE
PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
Sec. 734.8 Information resulting from fundamental research.
(a) Fundamental research. Paragraphs (b) through (d) of this section and Sec. 734.11
of this part provide specific rules that will be used to determine whether research in
particular institutional contexts qualifies as “fundamental research.” The intent behind
these rules is to identify as “fundamental research” basic and applied research in science
and engineering, where the resulting information is ordinarily published and shared broadly
within the scientific community. Such research can be distinguished from proprietary
research and from industrial development, design, production, and product utilization, the
results of which ordinarily are restricted for proprietary reasons or specific national security
reasons as defined in Sec. 734.11(b) of this part. (See Supplement No. 1 to this part,
Question D(8)). Note that the provisions of this section do not apply to encryption software
controlled under ECCN 5D002 for “EI” reasons on the Commerce Control List (refer to
Secs. 740.13(e) and 740.17(a)(5)(i) of the EAR for release under license exception).
(b) University based research. (1) Research conducted by scientists, engineers, or
students at a university normally will be considered fundamental research, as described in
paragraphs (b) (2) through (6) of this section. (“University” means any accredited
institution of higher education located in the United States.)
(2) Prepublication review by a sponsor of university research solely to insure that the
publication would not inadvertently divulge proprietary information that the sponsor has
furnished to the researchers does not change the status of the research as fundamental
research. However, release of information from a corporate sponsor to university
researchers where the research results are subject to prepublication review, is subject to
the EAR. (See Supplement No. 1 to this part, Questions D(7), D(9), and D(10).)
(3) Prepublication review by a sponsor of university research solely to ensure that
publication would not compromise patent rights does not change the status of fundamental
research, so long as the review causes no more than a temporary delay in publication of
the research results.
(4) The initial transfer of information from an industry sponsor to university researchers is
subject to the EAR where the parties have agreed that the sponsor may withhold from
publication some or all of the information so provided. (See Supplement No. 1 to this part,
Question D(2).)
(5) University based research is not considered “fundamental research” if the university or
its researchers accept (at the request, for example, of an industrial sponsor) other
restrictions on publication of scientific and technical information resulting from the project
or activity. Scientific and technical information resulting from the research will nonetheless
qualify as fundamental research once all such restrictions have expired or have been
removed. (See Supplement No. 1 to this part, Question D(7) and D(9).)
11
(6) The provisions of Sec. 734.11 of this part will apply if a university or its researchers
accept specific national security controls (as defined in Sec. 734.11 of this part) on a
research project or activity sponsored by the U.S. Government. (See Supplement No. 1 to
this part, Questions E(1) and E(2).)
(c) Research based at Federal agencies or FFRDCs. Research conducted by scientists
or engineers working for a Federal agency or a Federally Funded Research and
Development Center (FFRDC) may be designated as “fundamental research” within any
appropriate system devised by the agency or the FFRDC to control the release of
information by such scientists and engineers. (See Supplement No. 1 to this part,
Questions D(8) and D(11).)
(d) Corporate research. (1) Research conducted by scientists or engineers working for a
business entity will be considered “fundamental research” at such time and to the extent
that the researchers are free to make scientific and technical information resulting from the
research publicly available without restriction or delay based on proprietary concerns or
specific national security controls as defined in Sec. 734.11(b) of this part.
(2) Prepublication review by the company solely to ensure that the publication would
compromise no proprietary information provided by the company to the researchers is not
considered to be a proprietary restriction under paragraph (d)(1) of this section. However,
paragraph (d)(1) of this section does not authorize the release of information to university
researchers where the research results are subject to prepublication review. (See
Supplement No. 1 to this part, Questions D(8), D(9), and D(10).)
(3) Prepublication review by the company solely to ensure that prepublication would
compromise no patent rights will not be considered a proprietary restriction for this
purpose, so long as the review causes no more than a temporary delay in publication of the
research results.
(4) However, the initial transfer of information from a business entity to researchers is not
authorized under the “fundamental research” provision where the parties have agreed that
the business entity may withhold from publication some or all of the information so
provided.
(e) Research based elsewhere. Research conducted by scientists or engineers who are not
working for any of the institutions described in paragraphs (b) through (d) of this section
will be treated as corporate research, as described in paragraph (d) of this section. (See
Supplement No. 1 to this part, Question D(8).)
[61 FR 12746, Mar. 25, 1996, as amended at 61 FR 68579, Dec. 30, 1996; 62 FR 25456,
May 9, 1997; 65 FR 2496, Jan. 14, 2000]
TITLE 22—FOREIGN RELATIONSCHAPTER I—DEPARTMENT OF STATE
PART 123—LICENSES FOR THE EXPORT OF DEFENSE ARTICLES—
Sec. 123.16 Exemptions of general applicability.
(a) The following exemptions apply to exports of unclassified defense articles for which no
approval is needed from the Office of Defense Trade Controls. These exemptions do not
apply to: Proscribed destinations under Sec. 126.1 of this subchapter; exports for which
Congressional notification is required (see Sec. 123.15 of this subchapter); MTCR articles;
Significant Military Equipment (SME); and may not be used by persons who are generally
ineligible as described in Sec. 120.1(c) of this subchapter. All shipments of defense
articles, including those to and from Canada, require a Shipper’s Export Declaration (SED)
or notification letter. If the export of a defense article is exempt from licensing, the SED
must cite the exemption. Refer to Sec. 123.22 for Shipper’s Export Declaration and letter
notification requirements.
(b) The following exports are exempt from the licensing requirements of this subchapter.
(10) District Directors shall permit, without a license, the permanent export, and
temporary export and return to the United States, by accredited U.S. institutions of higher
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learning of articles fabricated only for fundamental research purposes otherwise controlled
by Category XV (a) or (e) in Sec. 121.1 of this subchapter when all of the following
conditions are met:
(i) The export is to an accredited institution of higher learning, a governmental research
center or an established government funded private research center located within
countries of the North Atlantic Treaty Organization (NATO) or countries which have been
designated in accordance with section 517 of the Foreign Assistance Act of 1961 as a major
non-NATO ally (and as defined further in section 644(q) of that Act) for purposes of that
Act and the Arms Export Control Act, or countries that are members of the European Space
Agency or the European Union and involves exclusively nationals of such countries;
(ii) All of the information about the article(s), including its design, and all of the resulting
information obtained through fundamental research involving the article will be published
and shared broadly within the scientific community, and is not restricted for proprietary
reasons or specific U.S. government access and dissemination controls or other restrictions
accepted by the institution or its researchers on publication of scientific and technical
information resulting from the project or activity (See Sec. 120.11 of this subchapter); and
(iii) If the article(s) is for permanent export, the platform or system in which the article(s)
may be incorporated must be a satellite covered by Sec. 125.4(d)(1)(iii) of this subchapter
and be exclusively concerned with fundamental research and only be launched into space
from countries and by nationals of countries identified in this section.
58 FR 39299, July 22, 1993, as amended at 59 FR 29951, June 10, 1994; 59 FR 45622,
Sept. 2, 1994; 67 FR 15100, Mar. 29, 2002 (added (b)(10)]
TITLE 22—FOREIGN RELATIONS
PART 125—LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED
DEFENSE ARTICLES
Sec. 125.4 Exemptions of general applicability.
(a) The following exemptions apply to exports of technical data for which approval is not
needed from the Office of Defense Trade Controls [subject to certain limitations, including
export to proscribed countries]...
(d)(1) Defense services for the items identified in Sec. 123.16(b)(10) of this subchapter
exported by accredited U.S. institutions of higher learning are exempt from the licensing
requirements of this subchapter when the export is:
(i) To countries identified in Sec. 123.16(b)(10)(i) of this subchapter and exclusively to
nationals of such countries when engaged in international fundamental research conducted
under the aegis of an accredited U.S. institution of higher learning; and
(ii) In direct support of fundamental research as defined in Sec. 120.11(8) of this
subchapter being conducted either at accredited U.S. institutions of higher learning or an
accredited institution of higher learning, a governmental research center or an established
government funded private research center located within the countries identified in Sec.
123.16(b)(10)(i) of this subchapter; and
(iii) Limited to discussions on assembly of any article described in Sec. 123.16(b)(10) of
this subchapter and or integrating any such article into a scientific, research, or
experimental satellite.
(2) The exemption in paragraph (d)(1) of this section, while allowing accredited U.S.
institutions of higher learning to participate in technical meetings with foreign nationals
from countries specified in Sec. 123.16(b)(10)(i) of this subchapter for the purpose of
conducting space scientific fundamental research either in the United States or in these
countries when working with information that meets the requirements of Sec. 120.11 of
this subchapter in activities that would generally be controlled as a defense service in
13
accordance with Sec. 124.1(a) of this subchapter, does not cover:
(i) Any level of defense service or information involving launch activities including the
integration of the satellite or spacecraft to the launch vehicle;
(ii) Articles and information listed in the Missile Technology Control Regime (MTCR) Annex
or classified as significant military equipment; or
(iii) The transfer of or access to technical data, information, or software that is otherwise
controlled by this subchapter.
[58 FR 39310, July 22, 1993, as amended at 65 FR 45284, July 21, 2000; 66 FR 35900,
July 10, 2001; 67 FR 15101, Mar. 29, 2002]
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