Research within the scope of EAR (including but not limited to some courses in engineering, chemistry, etc.): technology and software that “arise during, or result from, fundamental research ” are considered publically available and excluded from the EAR. “Fundamental research” is “basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community” (§734.8(a)).
Research conducted by scientists, engineers, or students at a U.S. university normally will be considered fundamental research unless there are restrictions on publication or the researchers accept specific national security controls on U.S. government-funded research (§734.8(b)); the definition included in §734.8(b)(1) limits “university” to US institutions, which is different from EAR’s exclusion for education.
Note: Encryption software controlled under 5D002 for EI reasons and mass market encryption software with symmetric key length >64 bits controlled under 5D992 remain subject to the EAR. (EAR §734.3, 734.9).
- For more information, Supplement No. 1 to Part 734, Sections A and D, contains questions and answers to clarify the regulations.
Research within the scope of ITAR (including but not limited to some courses in aero/astro, physics, nuclear science): “information, which is published and which is generally available to the public through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly within the scientific community, and without restrictions on publication of scientific and technical information resulting from the project activity or access and dissemination controls for U.S. Government-sponsored research, is considered public domain and excluded from ITAR control."
Research within the scope of DoE controls (including some courses in Nuclear Science and Engineering and Physics): research not involving any of 101 designated countries or involving specified items, including as production reactors, enrichment, reprocessing, fabrication of nuclear fuel containing plutonium, production of heavy water, or research reactors is generally authorized; research involving the designated countries or the specified activities must be specifically authorized (10 CFR §810.7, .8).
DOE’s written regulations don’t specify a fundamental research exclusion, but one does apply if the full results will be published. Because of the risk of acting unilaterally under general authorization and the written regulations’ failure to accurately describe practice, it’s good practice to ask for DoE interpretation as specified in the regulations.
The US government makes special provisions for fundamental research as matter of national policy:
- "It is the policy of this Administration that…the products of fundamental research remain unrestricted… No restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification..."
- National Security Decision Directive 189, "National Policy on the Transfer of Scientific, Technical and Engineering Information", 9/21/85 (Reagan Administration)
- “The key to maintaining U.S. technological preeminence is to encourage open and collaborative basic research. The linkage between the free exchange of ideas and scientific innovation, prosperity, and U.S. national security is undeniable.”
- Condoleeza Rice, National Security Advisor to Pres. George W. Bush, 11/1/2001, Affirmation of NSDD-189
- “Dept. of Defense awards for… contracted fundamental research should not involve classified items, information, or technology… Furthermore, unclassified contracted fundamental research awards should not be structured, managed, or executed in such a manner that they become subject to… U.S. export control laws and regulations.”
- Undersecretary of Defense Ashton Carter, 5/24/2010, Re-affirmation of NSDD-189