Fundamental Research

Fundamental research is generally research conducted in an open and free exchange of ideas environment. This usually means the information may be freely shared amongst colleagues and with the public (e.g. published). Further, it means that there are no restrictions on who can participate in the research. When this is the case, the Fundamental Research Exclusion generally applies to the information generated as a result of the research.

The Fundamental Research Exclusion (FRE)

The FRE is an exclusion that exempts sharing of controlled information (but not tangible items) from the requirements of licensing under Export Control laws. The FRE applies when basic research is conducted, driven by a scientist’s curiosity or interest in a scientific question. The main motivation is to expand human-kind’s knowledge, not to create or invent something. Further, there is no obvious commercial value to the discoveries that result from basic research.

There are 5 conditions that must be met in order to apply the FRE:

No publication restrictions can be accepted as part of the research agreement, either verbally or in writing.
No foreign person restrictions can be accepted as part of the research agreement, either verbally or in writing.
The scope of the project must constitute either basic or applied research.
The scope of the project does not constitute development.
The research project must be conducted at an accredited institution of higher learning in the United States.

Applied research (vs. fundamental research) is designed to solve practical problems of the modern world, rather than to acquire knowledge for knowledge’s sake. One might say that the goal of the applied scientist is to improve the human condition. Thus, applied research does not typically fall into the FRE, though it can in some instances.

Remember that the FRE applies to just information. Even if all 5 conditions are met, export controls still apply to actual materials, items, or technologies involved in or resulting from the research.

Also remember that though the RESULTS of research may be fundamental, if you receive controlled information in order to conduct the research, this information must be protected and IS export controlled.

FAQs

Are there situations in which the FRE does NOT apply?

First, anytime the contract specifies a restriction or requirement to safeguard the data or information generated, the FRE no longer applies to the research.

Next, the FRE does not apply to these circumstances, even when the FRE applies to information:

Physical shipment of tangible items
Equipment controlled by ITAR regulations (e.g. items related to military use, aircrafts, space technology, nuclear technology and various other defense related items).
Software that has access limitations implemented by the provider.
Research (or testing) that is not intended to be published
Research conducted outside the U.S.

How is fundamental research defined by the Federal government?

Fundamental research has several definitions from various agencies, which mostly overlap:

ITAR regulations: Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.
EAR regulations: Research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.

Does pre-publication review destroy the FRE?

Not necessarily. According to the EAR, requirements for pre-publication review by a sponsor will not destroy the FRE when:

The review is solely to ensure patent rights are not impacted AND the review causes no more than a temporary delay in publication of the results.
The review is solely for the purposes of removing proprietary information belonging to the sponsor. That proprietary information must have been furnished to the researcher(s) by the sponsor.
Restrictions that were in place have expired.

Applied research is designed to solve practical problems of the modern world, rather than to acquire knowledge for knowledge’s sake. One might say that the goal of the applied scientist is to improve the human condition. Thus, applied research does not typically fall into the FRE.

Remember that the FRE applies just to information; even if all 5 conditions are met, export controls may still apply to actual materials, items, or technologies involved in or resulting from the research.

Does the FRE apply if I receive controlled items or information to conduct the research?

If the results of the research have no retrictions on publication or involvement by foreign persons, then the FRE still applies to the results of the research.

However, the information or items received will not be excluded from export controls and therefore must be protected from access by or sharing with foreign persons. Typically this will require a technology control plan.

I still don't know if my research falls within the FRE. Where can I find this information?

There are several things you can do:

Talk with your sponosor and get their determiniation in writing.
Review the terms of your research agreement (the grant or contract).
Reach out to ORA to assist in the determination.