MinerAlert
MinerAlert
The term “fundamental research” means (in science, engineering, or mathematics), research in which the results are ordinarily published and shared broadly within the research community, and for which the researchers have not accepted restrictions due to proprietary or national security reasons. Fundamental research is distinguished from proprietary research and from industrial development, design, production, and product utilization, because the results of these are ordinarily restricted for proprietary or national security reasons. Both the ITAR and EAR provide that information resulting from fundamental research is not subject to export controls. This is referred to as the Fundamental Research Exclusion.
Specifically, the EAR provides that the fundamental research exclusion applies so long as the university and its researchers do not accept restrictions on publications of scientific and technical information resulting from the project or activity, or personnel access restrictions. The EAR specifically permits customary prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information, or to ensure that the publication will not compromise any patent rights. Access and dissemination controls in government contracts with national security agencies normally do not trigger a license requirement, as long as the university follows any and all national security controls imposed in the contract (15 CFR 734.8(b)).
By comparison, the ITAR states that university research will not be deemed to qualify as fundamental research if: (1) the university or its researchers accept any restrictions on publication of scientific and technical information resulting from the project or activity; or (2) the research is federally funded and specific access and dissemination controls protecting information resulting from the research have been accepted by the university or the researcher. The ITAR citation is 22 CFR § 120.11(8).
Under the EAR and ITAR, even if no publication restrictions or personnel restrictions apply, the fundamental research exclusion does not apply to the physical shipment of goods and to “technology” of “software” subject to the EAR that is released to conduct fundamental research. The use of sponsor or third-party trade secrets or other proprietary information in a research project which are subject to export control regulations (subject to EAR or ITAR) will continue to be subject to export controls even though the research and the research results are covered by FRE. The EAR citation is 15 CFR § 734.8(a).
While exports are commonly associated with the shipment of a tangible item across the U.S. border, export controls have a much broader application. One of the most difficult issues with respect to export controls is the fact that an export is defined to include the transfer of controlled information or services to foreign nationals, even when the transfer takes place within the territory of the United States. Although taking place inside the U.S., the transfer is “deemed” to be an export (as if exporting to the country of the foreign national). The term “deemed export” is unique to the EAR.
Both the ITAR and the EAR provide for deemed exports, even though in the case of defense exports, the regulations generally speak of exports. While the ITAR distinguishes between the transfer of technical data and defense services, the EAR generally provides for the release of technology or source code. Such transfer or release may be made through oral, visual, or other means. An export may occur through:
The issue of deemed exports is particularly relevant to university research because of the activities that normally take place at a university. While a university may be involved in the shipment abroad of equipment or machinery to participate in a conference, joint project, or equipment loan programs; most often, faculty and students are engaged in teaching and research. Whenever teaching or research is related to controlled equipment or technology, foreign students' or researchers' involvement may trigger export control compliance issues.
For purposes of defense and dual-use exports, the regulations define “foreign” person as anyone who is not a U.S. person. However, BIS looks at the person's most recent citizenship or permanent residence, while DDTC looks at the person's country of origin ( i.e., country of birth) and all current citizenships.
It is important to note that most of the activities that UTEP engages in are fundamental research. As such, most activities are not subject to export controls, or even if controlled, do not require licensing. Both ITAR and the EAR have special provisions relating to information that is not subject to export controls, including limited exclusions regarding the release of information in the context of university research and educational activities. Additionally, the embargo regulations have exceptions for certain information and informational materials.
All information that is publicly known is also not subject to export controls (again, with the exception of certain encryption software). Under the ITAR, information that is published and that is generally accessible or available to the public is said to be in the “public domain” and not export-controlled (see Section X Terms and Definitions). The EAR uses the term “published” or publicly available rather than “public domain.” Under the EAR, unclassified technology or software information is published and is not subject to the EAR when it has been made available to the public without restrictions upon its further dissemination. In addition to the examples listed above, the EAR specifically provides that software that is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution is publicly available (except for certain encryption software classified under ECCN 5D002).
Both ITAR and the EAR address the issue of general educational information that is typically taught in schools and universities. Such information, even if it relates to items included on the USML or the CCL, does not fall under the application of export controls if the information is already “published”.
Under the ITAR, information or software concerning general scientific, mathematical, or engineering principles commonly taught in universities or information in the public domain, are not subject to export controls (See 22 CFR 120.10–11).
Under a specific exemption, the EAR and ITAR allow a university to disclose unclassified technology, technical data, and source code in the U.S. to a foreign person who is the university’s bona fide and full-time regular employee. The exemption is available only if:
Note the "full-time bona fide employee" requirement will preclude foreign students and postdoctoral researchers from qualifying for access to technical data under this exemption . Generally, an H1B work visa would be required. This exemption only applies to the transfer of technology, technical data and discussions related to the data. Discussions may occur between the foreign full-time employee and other university employees working on the project. Additionally, the outside company (sponsor of the research) would have to apply for a DSP-5 license to provide technical data directly to the foreign national employee. Furthermore, if the outside party and the employee are to engage in discussions and interchange concerning the data, then the proper authorization would be a Technical Assistance Agreement (TAA) rather than the DSP-5.
Last Revision May 16, 2025