Fundamental Research Exclusion
As used in the export control regulations, 'fundamental research' means 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, 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. [NSDD189]
OSU research will not be deemed to qualify for this exclusion if: (1) OSU or the OSU Investigator accepts any restrictions on the publication of the information resulting from the research, other than limited pre-publication review by research sponsors to ensure that proprietary information is not inadvertently disclosed in publication or to ensure that the publication will not compromise the 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 OSU or the Investigator.
IMPORTANT NOTE: Remember three key facts about the Fundamental Research Exclusion: (1) it applies only to the dissemination of research data and information, not to the development or transfer of commodities.
The following may not qualify for the Fundamental Research Exclusion:
- Physical goods
- Software
- Encryption
The following never qualify for the Fundamental Research Exclusion:
- Research when there is no intention to publish the results
- Research which includes foreign national restrictions
In addition, the 'fundamental research' exclusion may not apply to information relating to export-controlled technology or materials used in research projects. Universities have assumed that they could share such information with foreign nationals without a license, since the information is being used while conducting 'fundamental research'. However, recent changes by the federal government suggest that additional controls may be required in a 'fundamental research' project before information can be shared with foreign nationals working on the project.
A “side deal” may occur where an OSU Investigator has a private agreement with a sponsor whereby they will conduct their research project in a manner that will permit the sponsor the right to approve a publication and/or to restrict foreign nationals on a research project to comply with the sponsor’s requirements. Such actions can disqualify OSU Investigators from utilizing the 'fundamental research' exclusion and can potentially expose both the individual Investigator on the project and OSU to penalties.
Public Domain and Publicly Available
Information that is published and generally available to the public, as well as publicly available technology and software is outside the scope of the export control regulations. This does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding. (15 CFR 734.3 (b) and .7)
Public Domain (22 CFR 120.34) means information that is ALREADY published and that is 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 published patents; (6) through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States (ITAR) or anywhere (EAR); (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency, including websites accessible to the public for free and without the host’s knowledge of or control of who visits or downloads the software and/or information (clearly acceptable under EAR and likely acceptable under ITAR); and (8) through fundamental research.
Educational Instruction Exception
Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses.