1.  What is "Fundamental Research"?

Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community.  Such research can be distinguished from proprietary research the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.  Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research. 
Information that qualifies as the result of “Fundamental Research” is not subject to export control regulations.  While the EAR and the ITAR provide very similar definitions of this term, there are some subtle but significant distinctions between the two sets of regulations.  The Commerce Department has published additional guidance and “Frequently Asked Questions” relating to the Fundamental Research provisions of the EAR in Supplement No. 1 to Part 734 of the EAR, which can be viewed at http://www.bis.doc.gov/DeemedExports/DeemedExportsFAQs.html.

2.  What is an “Export”?

Under the export control regulations, there are two main  ways to make an export.  The first and most obvious is to transport – mail, send, transmit, carry, etc. -- equipment, information, technology, data, software, or other materials to somewhere outside of the United States.  The second is to allow access to such materials by an individual who is physically in the United States, but who is neither a US citizen nor in the US under a valid green card (foreign nationals). This is referred to as a “deemed export.” Moreover, it is important to note that deemed exports can also include so-called “technical assistance” – i.e., training a foreigner in the use of technologies that are subject to export control.   

3.  What is a “Deemed Export”?

A “deemed export” is a release of technology or software source code to a Foreign National that is deemed to be an export under applicable export control laws to the Foreign National’s home country.  Such deemed exports occur through the disclosure of controlled technical data or software source code to a Foreign National in the United States or abroad.  Deemed exports are subject to the same licensing requirements and restrictions as actual exports.

Additional information and FAQs relating to Deemed Exports is available on the Commerce Department website at http://www.bis.doc.gov/deemedexports/deemedexportsfaqs.html.

4.  What is a “Reexport”?

A “reexport” is an actual shipment or electronic transmission of controlled U.S.-origin items from one foreign country to another foreign country.  The U.S. export control regulations “follow the good” and therefore continue to apply to U.S.-origin items even after they have left the United States. 

5.  What is a “Defense Article”?

A “Defense Article” is any piece of hardware, software, or technical data that is specifically identified on the United States Munitions List or is otherwise designed or modified specifically for military applications.  Such items are subject to the export licensing requirements of the ITAR.

6.  What is a “Defense Service”?

A “Defense Service” is the act of providing technical 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.  This term also includes the release of Technical Data and the provision of military training to Foreign Persons.  Such services are subject to the export licensing requirements of the ITAR.

7.  What is an “Export License”?

An Export License is a formal document issued by the U.S. Government authorizing the export or reexport of controlled U.S.-origin goods, software, technical data or services.  There are specific procedures for requesting such Export Licenses under the EAR, the ITAR and the OFAC economic sanctions regulations.  
 
8.  What are “Foreign Nationals” and “Foreign Persons”? 

A Foreign National is any individual person who is not a U.S. citizen, legal permanent resident (Green Card holder), political asylee or refugee.  The term “Foreign Person” includes any individual Foreign National, as well as any government, legal entity or organization existing under the laws of a foreign country.

9.  What is a “Dual National”?

A “Dual National” is an individual who is a citizen or legal permanent resident of more than one country.  Individuals who are Dual Nationals of the United States and a Foreign Country are treated the same as U.S. citizens under the U.S. export control regulations (i.e., they are not considered “Foreign Nationals” for export licensing purposes).

Foreign Nationals who are Dual Nationals of two or more foreign countries (but not of the United States) are treated differently under the ITAR than under the EAR for export licensing purposes.  Under the ITAR, the State Department treats such individuals as nationals of the most problematic country (e.g., an individual born in China but currently living in the U.K. with U.K citizenship still is treated as a Chinese national).  In contrast, the Commerce Department considers the individual's most recent nationality as the relevant nationality under the EAR (e.g., the same individual would be treated as a U.K. national under the EAR.)

10.  What is “Technical Data”?

The terms “Technical Data” and “Technology” refer to categories of information that are subject to the export control regulations.  These terms are defined in the regulations to mean specific information that is necessary or required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of goods or software.  Technical data or Technology generally takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, or documentation.
Information that is in the public domain, including basic marketing materials and general system descriptions about a controlled commodity, does not constitute Technical Data and is not subject to export controls.  Information resulting from “Fundamental Research” also is exempt from these definitions. 

11.  What is a “Technical Assistance Agreement”?

A Technical Assistance Agreement (“TAA”) is a form of Export License issued under the ITAR that authorizes U.S. persons to exchange ITAR-controlled Technical Data and Defense Services with foreign entities or individuals.

12.  What is “Published” or “Public Domain” Information?

Information is “Published” or within the “Public Domain” when it becomes generally accessible to the interested public in any form, including: (1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution 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; (2) readily available at libraries open to the public or at university libraries; (3) patents and published patent applications available at any patent office; and (4) release at an open conference, meeting, seminar, trade show, or other open gathering.  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.

13.  What is “Educational” Information?

Educational Information is instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions.

14.  What is a “U.S. Person”?  

For purposes of the OFAC sanctions regulations, the term “U.S. Person” generally is defined to include (1) individual U.S. citizens and legal permanent residents, regardless of where they are located; (2) entities organized under the laws of the United States (including universities) and their foreign branches (and, in certain circumstances, their foreign-owned or controlled subsidiaries); and (3) any individual or entity physically located in the United States. 

15.  I have a question that was not answered.  What do I do now?

Contact the Office of Compliance or the Department of Contracts and Grants for assistance.