Researcher Guidance

Most UK research is not subject to export controls due to the Fundamental Research Exclusion (FRE), but there may be other limitations imposed that limit activity, e.g., Office of Foreign Assets Control (OFAC) restrictions. It is important to note that the FRE only applies to technical data/information and not physical items. There are also several other exclusions from general export control requirements that may apply. These exclusions are explained below. However, not all research activities will fall under one of these exclusions. If an exclusion does not apply and your research activity is subject to export controls, you may need to obtain a license or approval from the U.S. Government. Any license must be obtained before embarking on the relevant research activity. 

Do not assume that export controls do not apply merely because you are not transmitting a physical item to a foreign country. In addition to the transfer of physical items, an “export” (deemed export) includes the release of technology (EAR), technical data (ITAR), and source code to foreign nationals in the U.S. 

You must work with UK’s Office of Sponsored Projects Administration to develop a Technology Control Plan for each export-controlled project (849-257-9420, ospa@uky.edu).

The main exclusions that may apply to your research are the Fundamental Research Exclusion, Educational Information Exclusion and Public Information Exclusion.  You should also review the provisions of the EAR setting forth these and other exclusions. 

Fundamental Research Exclusion (FRE)
Under both the EAR and ITAR, “fundamental research” is excluded from the EAR’s and the ITAR’s export controls.  Fundamental research is basic or applied “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.” 

The FRE applies only to information.  It does not apply to:

• Physical items
• Confidential or classified information
• A sponsor’s technical data
• Encryption software or technology
• Military/space-related research conducted overseas

The FRE is not applicable, and research will be subject to export controls, if:

• Publication is restricted
• Participation is restricted based on nationality
• A contract gives the sponsor a right to approve publications
• There is a side “secrecy” agreement
• Dissemination restrictions limit who can access the research
• Research takes place outside the U.S. (may be controlled)
• Research activities involve an embargoed or sanctioned country or restricted or denied parties.

Educational Information Exclusion
General educational material is excluded from export control regulations, including information taught in online courses.

• EAR: The release of information by instruction in a catalog of courses and associated teaching laboratories is not subject to the EAR. 
• ITAR: Information regarding general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities is not subject to the ITAR.

Public Information Exclusion
Information that is already published or in the public domain is not subject to export controls, such as:

• Publicly available websites
• Books, periodicals and newspapers
• Publicly available software and technology
• Information presented at open conferences, meetings and seminars
• Information in public patents

If no exclusions apply, consult the EAR Commerce Control List (CCL) or the U.S. Department of State’s Munitions List (USML) to assess whether an export license is required. 

Items on the CCL are classified under Export Control Classification Numbers (ECCNs). It is critical to properly classify the relevant research or technology by the correct Export Control Classification Number (ECCN) or ITAR USML category. When applicable, the first approach is to locate the ECCN or ITAR USML category is to contact the manufacturer or sponsor. 

Country-specific requirements under the EAR can be determined by comparing an item’s ECCN with the Commerce Country Chart. Note that, under most circumstances, items with the EAR99 export classification do not need a license. 

Who Are Foreign Persons?
A foreign person is anyone who is not a U.S. person. 

For the complete definitions, please see 15 CFR § 772.1 (definitions for foreign person and U.S. person under the EAR), 22 CFR § 120.63 (definition of foreign person under the ITAR).

A U.S. person is:

• A U.S. entity or citizen;
• Lawful permanent resident (i.e., green card holder);
• Protected individual under the Immigration and Naturalization Act (8 U.S.C. § 1324b(a)(3) (i.e., temporary or pending residency status); or
• Any part of the U.S. government.

The ITAR looks at the person’s country of origin and all current citizenships. The EAR looks at the person’s most recent citizenship and permanent residence. Individuals working on behalf of a foreign entity assume the nationality of the foreign entity regardless of their personal citizenship or residence, even if they are in the U.S.