The US export control regulations (15 CFR § 734.8(a) and (b), and 22 CFR § 120.11(a)(8)) provide for a Fundamental Research Exclusion (FRE) from the licensing requirements for information arising during or resulting from fundamental research conducted at an accredited institution of higher learning located in the US. If research or other activity controlled for export is eligible for the FRE, and not otherwise restricted by ITAR or OFAC regulations, foreign nationals located in the US may participate in the research. It is important to note that even though the research results (“output data”) may be eligible for the FRE and accessible to foreign nationals; information received from the sponsor (“input data”) may still be restricted to US persons only, depending on its export classification. In general, the FRE is destroyed if UH accepts any contract clause that:
- Forbids the participation of foreign nationals;
- Gives the sponsor the right to approve publications resulting from the research; or
- Otherwise operates to restrict participation in research and/or access to and disclosure of research results
“Side deals” between a principal investigator (PI) and sponsor to comply with such requirements, even though it may not be stated in the research contract, may also destroy the FRE and expose both the PI and the UH to penalties for export control violations. Such side deals may also violate other UH policies.
Fundamental research applies only to information that arises during, or results from, the research activity. It does not apply to information otherwise export-controlled that is used in the conduct of fundamental research, or to tangible, end use items.