Research administrators are not expected to serve as export-licensing officers, but they are frequently the first institutional reviewers to see a solicitation, contract clause, international travel budget, or equipment transfer that triggers export control obligations. Knowing how the three federal regimes differ—and what the Fundamental Research Exclusion (FRE) does and does not cover—allows you to escalate issues to your institution's Export Control Officer (ECO) before an agreement is signed or controlled data is shared.
The Three Federal Export & Sanctions Regimes
| Regime | Administering agency | Core scope |
|---|---|---|
| EAR — Export Administration Regulations (15 CFR Parts 730–774) | Bureau of Industry and Security (BIS), U.S. Department of Commerce | Commercial and dual-use commodities, software, and technology listed on the Commerce Control List (CCL) by Export Control Classification Number (ECCN), as well as EAR99 items. |
| ITAR — International Traffic in Arms Regulations (22 CFR Parts 120–130) | Directorate of Defense Trade Controls (DDTC), U.S. Department of State | Defense articles, defense services, and related technical data listed on the United States Munitions List (USML). |
| OFAC Sanctions Programs (31 CFR Chapter V) | Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury | Comprehensive and targeted economic/trade sanctions, embargoes, and restrictions on transactions or services involving sanctioned countries, entities, or individuals on the Specially Designated Nationals (SDN) and other restricted-party lists. |
Deemed Exports: Release Inside the United States
Export controls are not limited to physical shipments across a border. Under both the EAR (15 CFR 734.13(b)) and the ITAR (22 CFR 120.50), releasing or otherwise transferring controlled technology, source code, or technical data to a foreign person inside the United States is a deemed export—treated as an export to that person's country or countries of nationality.
Note who is not a "foreign person" under these definitions: U.S. citizens, lawful permanent residents of the United States ("green card" holders), and certain protected individuals under 8 U.S.C. 1324b(a)(3) are U.S. persons. Foreign nationals on student, exchange, or employment visas (such as F-1, J-1, or H-1B) are foreign persons for deemed-export purposes.
What the Fundamental Research Exclusion Covers — and What It Does Not
Grounded in National Security Decision Directive 189 (NSDD-189) and implemented in 15 CFR 734.8 (EAR) and 22 CFR 120.34(a)(8) (ITAR), fundamental research means basic and applied research in science and engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. government access and dissemination controls.
Keep three critical boundaries in mind:
1. The FRE applies only to resulting information and software — never to physical items or entire projects
Even when a research project qualifies as fundamental research:
- Physical shipments of equipment, biological materials, prototypes, or hardware outside the United States remain fully subject to EAR/ITAR licensing rules.
- Sponsor-furnished or third-party proprietary export-controlled technology (such as controlled source code, defense technical data, or non-public technical specifications required to operate controlled equipment) is not converted into fundamental research merely because it is used in a university lab.
- OFAC sanctions and restricted-party prohibitions still apply to transactions, services, and collaborations involving sanctioned countries or denied/blocked parties.
2. Contractual restrictions that destroy Fundamental Research status
Information resulting from university research loses Fundamental Research protection if the institution accepts:
- Prepublication approval or publication vetoes by a sponsor or government agency (note that under 15 CFR 734.8(b), temporary prepublication delay solely to ensure a sponsor's proprietary inputs are not inadvertently divulged or to file a patent application does not by itself destroy fundamental research status, provided the delay is strictly limited and does not grant a publication veto—always verify the exact regulatory conditions under EAR vs. ITAR with your ECO); or
- Foreign-national participation or access restrictions on the research effort imposed by a sponsor or federal funding agency.
3. Technology Control Plans (TCPs)
When an institution accepts an award that involves export-controlled technology, technical data, or restricted clauses that take work outside the FRE, the Export Control Officer typically establishes a Technology Control Plan (TCP) specifying physical security, IT access controls, personnel screening, and any required export licenses before work begins.
Five Escalation Questions for Sponsored Programs Review
Route the proposal or agreement to your institution's Export Control Officer whenever any of the following is true:
- Does the solicitation or draft agreement restrict publication or dissemination of research results, or require sponsor approval before publishing?
- Does the award restrict participation or access based on citizenship or nationality?
- Will the project receive proprietary, confidential, or government-furnished technical data or software from a sponsor or collaborator?
- Does the project involve shipping physical equipment, biologics, materials, or encrypted hardware/software outside the United States, or international travel to a sanctioned destination?
- Does the project involve any foreign entity, collaborator, or sponsor that must be screened against the Consolidated Screening List (BIS, DDTC, and OFAC restricted-party lists)?