Research carrying publication or dissemination restrictions may preclude characterization of the effort as “fundamental research”. As a result, you may be facing prohibitions limiting the participation of foreign persons.

“Fundamental research” is defined as basic or applied research in science or engineering, the results of which are intended to be shared with the interested scientific community or otherwise placed in the public domain. Fundamental research, by definition, is free of access, participation, or dissemination restrictions.  Fundamental research is granted special status by US export regulations, such that participation by foreign persons in such research does not require export licenses to be obtained. If the research is other than “fundamental”, then the conduct and results of that research may be subject to the full array of export control restrictions.

If the research sponsor funds research and specific controls are agreed upon to protect information resulting from the research, then information resulting from the project will not be considered fundamental research. Example of “specific control” include requirements for prepublication sponsor review, with the right to withhold permission for publication or restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of person in the research.

Shipping Export-Controlled items to a destination outside the U.S. may require an export license. University Personnel who wish to ship items, including materials and software, abroad must ensure that the items do not require an export license. University Personnel can independently ascertain or verify an item’s Export Control Classification Number (ECCN) with the item’s vendor or manufacturer. University Personnel must contact the ECO if the ECCN is anything other than “EAR99,” or if they have difficulty obtaining the ECCN.  University Personnel must verify that the recipient is not a Restricted Party and/or that the destination country is not a restricted destination.  The ECO can assist in making this determination. 

When shipping biological, chemical, or other hazardous materials or when shipping items that are encapsulated in or shipped in biological, chemical, or hazardous materials, University Personnel must also follow shipping and handling policies and procedures as directed by any applicable Environmental Health or Office of Research Compliance requirements. 

A license may be required to release certain information, technology, or technical data to a non-U.S. Person in the United States. Examples of releases to non-U.S. Persons (known as “Deemed Exports”) include providing access to Export-Controlled items, technology, or technical data by visual inspection or use, providing access via tours of facilities, or verbally exchanging information. (For purposes of this policy, a “non-U.S. Person” is defined as any natural person or entity who is not granted U.S. permanent residence or status as a “protected person” under 8 U.S.C. § 1324b(a)(3); is not any business/corporation/organization/group organized in the U.S. under U.S. law; or is not any part of the U.S. Government).

University Personnel who have controlled items, technology, or technical data are responsible for preventing Deemed Exports without an appropriate license. University Personnel must contact the ECO if they want to release Export-Controlled items, technology, or technical data to a non-U.S. Person in the U.S. The ECO will determine licensing requirements. 

Traveling outside the U.S. with certain items or equipment may require an export license depending on both the item and the travel destination. In some instances, license exceptions may be available. Use of such exceptions must be documented by the ECO. The sharing of personal knowledge or technical expertise in other countries (e.g., as a keynote speaker, visiting lecturer, etc.) may also require a license. University Personnel who travel outside the U.S. with items, materials, and encrypted devices, or who share technical expertise in other countries, assume responsibility for ensuring that the items, materials, devices, or expertise do not require an export license.  This responsibility is in addition to those responsibilities identified in the University International Travel Policy.  

The ECO can assist with determining whether a license for transport of such items, materials, and devices, and/or provision of such services is required. 

University Personnel who are collaborating with or exchanging items and information with any university designated as a Restricted Party, or hosting visiting scholars or scientists who are employed by, representatives of, or affiliated with any university designated as a Restricted Party, must contact the ECO to assist in evaluating potential export and Deemed Export risks and comply with any requests of the ECO to assess and mitigate any identified risks.  The ECO will also assist in any initial screening to determine if a potential non-U.S. Person collaborator or visiting scholar has been designated as a Restricted Party. 

University Personnel intending to host visiting scholars or scientists from comprehensively embargoed countries must contact the ECO well in advance of any proposed visit to allow the ECO to assist in evaluating potential Deemed Export risks. University Personnel must comply with any requests of the ECO to assess and mitigate any identified risks. 

While most research conducted at University of Montana falls under the Fundamental Research Exemption (FRE), the FRE does not apply to Export-Controlled items, nor does it apply to technology, or technical data that the University receives from other parties. Certain Non-U.S. Persons may not be able to participate in research involving Export-Controlled items, technology, or technical data without a license granted by a Federal regulatory agency.  

University Personnel must contact the ECO if proposing to conduct research involving Export-Controlled items, technology, or technical data that is controlled under the ITAR and listed on the USML; or controlled under the EAR and listed on the CCL under the”500 series” or  “600 series” .

The ECO will assist in determining license or other requirements and facilitate the acquisition of licenses. University Personnel must comply with any stipulations in an export license and any other related measures implemented by the ECO. 

UM faculty may be asked to accept confidential, proprietary, or export-controlled data or material as part of a research project subject to a Non-Disclosure Agreement (NDA) signed by both the discloser and the recipient. NDAs may include licensing agreements which limit or prohibit the disclosure or transfer of the licensed data or materials. 

NDAs and similar confidentiality agreements are permissible ONLY to the extent that the information is entirely peripheral to the research program (sufficiently remote from the intellectually significant portions of the research) and the disclosure restriction must not affect the ability to publish the research results. 

In addition, if you accept confidential or proprietary information subject to a Confidentiality or Non-Disclosure Agreement, and the disclosure restrictions affect your ability to publish research results, the research itself will lose its characterization as "fundamental research" for export control purposes. Should the research entail information or software identified on US export control lists, and you wish to have non-U.S. Persons participate in the research, you may be required to obtain an export license. 

Of course, if the confidential data pertains to such information as personal health, income, or other demographic data that does not have a strategic significance (and is thus not identified on US export control lists), then export control restrictions on non-U.S. Persons participation would not apply. 

If you have any questions about this, or if you are asked to sign such an agreement, contact the Export Control Office and ask for a review of the agreement.