Fundamental Research Exclusion (FRE)
The term Fundamental Research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community; this is 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.
The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transfer of material goods.
The Fundamental Research Exclusion is not applicable if the university accepts any contract clause that:
- Forbids the participation of foreign persons;
- Gives the sponsor a right to approve publications resulting from the research;
- Otherwise operates to restrict participation in research and/or access to and disclosure of research results; or
- Contains “side deals” (e.g., non-disclosure, confidentiality, or intellectual property agreements) between a PI and Sponsor to restrict the release of research findings even though not stated in the research contract.
"Published" Information Exclusion
Information is “published” (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:
- Publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution;
- Readily available at libraries open to the public or at university libraries;
- Patents and published patent applications available at any patent office; and
- Released at an open conference*, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
* Note, a conference or gathering is “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either ‘first come’ or based on relevant scientific or technical competence.
The Education Exclusion
Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Thesis, “capstone,” or dissertation research must meet the standards for “fundamental research” to qualify as “publicly available.”