Fundamental Research

Fundamental Research is not a categorical exemption from export controls. Work must be reviewed by qualified personnel to determine if the work qualifies as fundamental research and is subject to the fundamental research exclusion.

Each year, the U.S. Department of Energy (DOE) provides billions of dollars to fund research around the world. Many of those efforts occur at DOE facilities, but some programs operate in other domestic locations or even other countries. Although DOE is committed to expanding human knowledge and driving discovery, caution is required to ensure export compliance. Although there are very specific exclusions for fundamental research results and publicly available information, they are not blanket exemptions from the regulations.

The Fundamental Research exclusion only applies to the results of the fundamental research, not the entire research process itself.

Merely stating that something is Fundamental Research does not make it so. Fundamental Research cannot be a categorical exemption. The work must be reviewed by qualified personnel via a documented process to determine if the work qualifies as fundamental research and therefore can be subject to the fundamental research exclusion.

The transfer of existing export-controlled technology or items to carry out the actual research, no matter how you bucket it, is subject to export controls.

Even if the work is ruled as Fundamental Research, the exclusion would only apply to the results of the research. The items (machinery, instruments, commodities, etc.), software, and technology used during the research could still be export controlled.

The rules for Fundamental Research are slightly different for each jurisdictional agency and understanding which jurisdiction controls your technology is key to a proper determination.

Different Jurisdictions, Different Definitions

The three major export control regulations (Department of Commerce’s Export Administration Regulations (EAR), Department of State’s International Traffic in Arms Regulations (ITAR), and DOE’s Part 810 regulation) each define fundamental research slightly differently. Programs wishing to publish information need to determine which jurisdiction’s definition applies. The descriptions below are illustrative. Refer to the Regulations and Regulatory Agencies page or contact the Export Control Office, export@bnl.gov, for more.

Fundamental Research and Export Controls Example

Technology provided and equipment used by foreign nationals during the project remain subject to export control requirements. Formal government authorization could be required prior to the release of controlled technology to foreign nationals during the fundamental research program.

A common pitfall occurs when a foreign national researcher receives controlled technology related to the development, production, or use of export-controlled commodities (such as certain mass spectrometers, cameras, or lasers) as a part of the research program. Even if the project’s results are considered fundamental research, technology used to conduct the research may still be subject to export controls. Sufficiently detailed information about the operation of some items can constitute a release of controlled technology.

For example, laboratory scientists plan to investigate new spray-drying production techniques to improve aerosolized delivery of medicine. Spray dryers, which are designed to dehydrate slurries using air, produce pharmaceuticals without the use of excessive heat treatment or mechanical separation. Spray dryers are considered “dual-use” because the technology needed to optimize aerosolized medicine can also be used to improve the efficacy of airborne biological weapons.

Export controls require the laboratory scientists to treat the spray dryer technology (e.g., how to operate, maintain, and repair the equipment) as export-controlled information. Although the ultimate research results will fall under an exemption, the spray dryer technology remains subject to export controls. This means foreign national participation in the research study may require export authorization before the experiment begins, even if no information is transferred abroad.