Export Control

What controls in government-sponsored research nullify the “fundamental research exclusion?”

If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Such controls are usually contained in contractual clauses. Examples of "specific controls" include requirements for prepublication “approval” by the Government; restrictions on dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research.

Does a sponsor request to “review” a publication prior to distribution nullify the fundamental research exclusion?

No, this kind of review, even when requested, is considered a courtesy rather than a restriction. If the award required "review and approval" it is considered a restriction as this language implies the potential of denying approval to publish or requiring changes to the report, presentation, or article prior to publication. A publication approval requirement would nullify the fundamental research exclusion.

What if a sponsor begins providing export-controlled information or technology to a project previously determined to be fundamental research?

This action is an indication that the direction of the research or some other factor has changed the project in some way to render the export control regulations applicable to this project and that, more than likely, the researcher’s work will now be export controlled.  Contact Export Control before continuing work on the project to re-evaluate for export control protocols.

What is “Technical Data” and “Technology”?

Technical data is a term defined in the International Traffic in Arms Regulations (ITAR) as information, which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles and software directly related to defense articles.  
 
Technology is defined by the Export Administration Regulations (EAR) as specific information necessary for the “development”, “production”, or “use” of a product.
 

What is a defense article?

Defense articles are all items, data specifically designed, developed, configured, adapted, or modified for a military application.  Defense articles are listed on the U.S. Munitions List (22 CFR Section 121.1).

What is a defense service?

A defense service is furnishing of assistance to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; or  the furnishing to foreign persons of any technical data controlled whether in the United States or abroad.

What is a dual use item?

These are items and associated technologies that are commercially available and also have a military or proliferation applications. Items determined to have a dual capability are enumerated in the Commerce Control List.

What is a Technology Control Plan (TCP)?

A TCP is a protocol that outlines the procedures to secure certain export-controlled items (technical data, materials, software, or hardware) from unauthorized use, access, and observation by non-U.S. persons. The Export Control staff, with assistance from the Principal Investigator (PI), will develop a TCP that is designed for the specific project. The PI is the ultimate responsible party for adherence to the TCP by project personnel. All project personnel listed on the TCP are required to complete export control training every two years.

Who or what is considered a U.S. Person?

An individual with U.S. citizenship, Permanent resident alien (Green Card holder) or protected individual status such as refugees and asylees. Corporations or organizations incorporated in the United States are
U.S. Persons for purposes of the ITAR and EAR. It is also any business entity incorporated to do business in the United States.

What is a foreign entity?

A foreign entity is any corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments. A person (even a U.S. citizen) is considered a foreign person if they work for or represent a foreign entity.
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