Sharing Materials, Services and Information

The fundamental research exclusion covers the free sharing of information resulting from fundamental research projects. It does not pertain to any tangible products developed from that research (i.e., prototypes, materials, software or genetically modified organisms).

The exclusion does not cover technical data that would allow for the production of a tangible item (e.g., a blueprint or schematic) or third party proprietary information not in the public domain even if it is part of a fundamental research project.

To remain compliant, the university must evaluate potential off-campus shipments of physical materials, including biologics, chemicals, specialized scientific equipment, non-commercial software, source code or encryption code. This helps determine which items might need more documentation or an export license.

When shipping to foreign countries or foreign persons within the United States, you are regulated by the category of the item(s), the destination country and/or the nationality of the individual or institutional recipient. 

UB's export control office can help guide you on U.S. regulations when sending materials to another country but not with the import requirements or procedures of the destination country. If shipping physical materials, we suggest you also work with a customs broker.

Generally you can share the results of your research data with others regardless of nationality because it is considered to be fundamental research. 

However, sometimes sharing data falls outside the fundamental research exclusion. This occurs when the university's contract clause:

1. Forbids the participation of foreign persons;
2. Gives the sponsor publication approval rights (beyond a reasonable review period for checking proprietary information); or
3. Otherwise restricts participation in research and/or access to and disclosure of research results.

Side deals between researcher and sponsor are a violation of SUNY research policy. They also could eliminate the fundamental research exclusion, possibly exposing both the principal investigator (PI) and the university to export control issues.

SUNY policy prohibits the acceptance of any awards that restrict dissemination of research results (Document 1800) and/or foreign national participation (Document 1801). 

• To protect state or national security, you can request a justifiable exception to this policy by submitting it to the chancellor or designee for approval. Sponsored Projects will assist you with this as part of the contract negotiation process.  
• Any projects granted exceptions to these SUNY policies still need further review to determine if they need a technology control plan and/or export licenses.

To evaluate your project, ask yourself:

1. Is there any restriction on participation of foreign persons as a part of the grant or contract?
2. Is there any restriction on publication of research results?
3. Is there a Confidential Disclosure Agreement (CDA) for exchanging information that may include proprietary information, including pending patent applications not yet published? 
4. Is there a technology control plan associated with this project?
5. Am I dealing with strong encryption technology or technology that could be used for a military /defense purpose (even if a civilian purpose also exists)?

If any of the above apply, please contact the export control office to discuss the situation because you might be restricted from disclosing research data. Sharing this information could violate export controls and be a breach of the grant/contract terms and conditions.

If you, your laboratories or centers  are providing services to outside entities (e.g., sample analysis, consulting and/or technical assistance), this activity is not protected by the fundamental research exclusion. Additionally, if your customers are not U.S. persons or institutions, your work might be considered an export, so check with the export control office.

Many times you are working with a U.S. corporation or government entity and you need take no additional action when providing results to them. If you are providing other materials, equipment or technical data may, you might need a Material Transfer Agreement.

While not an issue for most university based research, please be aware that providing defense services  (ITAR 120. 9) is prohibited in most cases unless you have an export license. This would include training of foreign nationals (whether in the U.S. or abroad) in conjunction with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles as well as supplying controlled technical data to foreign nationals anywhere.