Export Controls and the Fundamental Research Exclusion

Last April, we went over the basics of export controls to, at the very least, make sure that such an important issue remains on the radar of all research administration personnel.  As we mentioned, there are exceptions to activities subject to these regulations, and today we’ll examine in the one that universities avail most often.

As a reminder, export control regulations govern the dissemination of certain information, services and products to foreign nationals and countries, and are encompassed under the areas of national security and foreign trade policy.  The actual “export” can come in many forms, be it an actual physical transfer outside of the United States, a visual presentation of the subject matter, or even an oral or written disclosure.

Thankfully, for efficiency’s sake, there are several exclusions that apply to work undertaken by universities, with the most notable being Fundamental Research Exclusions (FRE).  The FRE apply to information that is the result of basic and applied research in science and engineering that is conducted at an accredited institution of higher learning or education within the United States.  Additionally, this information cannot be restricted for proprietary reasons or specific national security reasons, and cannot be subject to specific U.S. government access and dissemination controls.

One significant aspect of the FRE is that it applies to all research personnel regardless of their citizenship, so long as the related research will be made publicly available.  Non-U.S. citizens often have to secure a ‘deemed export’ license for their activities, which are usually required when a foreign national located on U.S. soil may have access, or will be exposed, to controlled technical data or technology.  (The exposure to the national is considered an actual transfer and thus is, by extension, ‘deemed’ to be exported to the home country of the person.)  However, if the foreign national’s efforts will be made publicly available, such requirement is waived under the FRE, thereby allowing a research project to continue unimpeded.

That being said, not all of the above research may necessarily qualify for a FRE.  One example is in the event of a collaborative project with a foreign entity even if the work is being performed within the U.S.  Additionally, restrictions flowed down from a federal award, such as those on publication and involvement of foreign nationals, may override an exclusion.

As with any governmental regulation, it is imperative that everyone involved in the research process be aware of their export control responsibilities and act accordingly.  Additional information can be obtained from the U.S. Department of Commerce, as well as NCURA.  And, when in doubt, ask questions of your department administrator or your institution’s designated export compliance officer.  It is certainly advisable to resolve any issues, however trivial you may believe be them to be, as early as possible in the process to ensure that the efforts of a PI are not compromised.