Most research institutions are aware that an exemption for "fundamental research" exists under U.S. export control laws. Under the exemption, the results of fundamental research generally are exempted from the rules and requirements of U.S. export control laws. As a result, the transfer of fundamental research results to a foreign national would not require any authorization (i.e., license) from the government than otherwise would be required.
Specifically, fundamental research information is information that is published and generally accessible or available to the public through the performance of fundamental research. Fundamental research is basic and applied research in science and engineering where the resulting information ordinarily is published and shared broadly within the scientific community. Fundamental research is distinguished from proprietary research, or research subject to specific U.S. government access and dissemination controls. Fundamental research can be performed by industry, federal laboratories, universities, hospitals and other types of institutions. In determining whether specific research is fundamental research, it is the freedom of publication and dissemination (or lack thereof) that is the controlling factor.
The fundamental research exemption will be lost if restrictions are accepted on the publication of the scientific and technical information resulting from the project or activity. In order to maintain the applicability of the exemption to the research results, no publication restrictions may be accepted. Prepublication review by the sponsor is permitted only to the extent necessary to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers. In addition, if the research in question is funded by the U.S. government and specific national security controls are agreed upon to protect the information resulting from the research, the fundamental research exemption will not apply to the export or reexport of such information. These specific national security controls include (1) requirements for prepublication review by the government with right to withhold permission for publication; (2) restrictions on prepublication dissemination to non-U.S. citizens; and (3) restrictions on the participation of non-U.S. citizens in the research. Nevertheless, scientific and technical information resulting from the research will qualify as fundamental research if all such restrictions expire or are subsequently removed.
The key to remember is that only the results of fundamental research are protected by such an exemption. Just because the research project will result in the production of fundamental research does not automatically exempt the entire project from U.S. export control requirements. Any technology or technical data provided to foreign national researchers during the conduct of the research project still may be subject to licensing requirements, depending on the type of technology/technical data provided and the nationalities of the researchers. Unless the technology/technical data released to the researchers is itself the result of fundamental research or qualifies for another exception, dissemination still may be restricted or prohibited. Technology and technical data, which can include blueprints, drawings, photos, plans, instructions, documentation and software, is still subject to the exemption's restrictions on dissemination. Thus, government authorization may very well be required for the release of controlled technology to a foreign national during the conduct of the fundamental research. One example that occurs frequently is when a foreign national student is given controlled technology or technical data related to the development or use of export-controlled items (such as certain lasers, thermal cameras and imaging equipment). Detailed instruction on the use of such items can, in some cases, be a release of controlled technology or technical data, depending on the specific information conveyed to the foreign national student. Even if the results of the research project will be fundamental research, the release of the use or development technology will not be covered by the fundamental research exemption. In such a case, depending on the type of technology and the nationality of the student, authorization from the U.S. government may be required.