EAR 734.3(B) (3): TECHNOLOGY AND SOFTWARE PUBLICLY AVAILABLE

"Publicly available" includes information/technical data and software that are:
 
1. "Published" (EAR 734.7):
 
Generally accessible to the interested public in any form including:
- Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either for free or at a price that does not exceed the cost of reproduction and distribution;
- Available at libraries open to the public or at university libraries;
- Patent and open (published patent) applications available at any patent office;
- Release at an open conference, meeting, seminar, trade show, or other open gathering.
 
2. "Resulting from Fundamental Research" (EAR 734.8) 
 
According to EAR 734.8, is defined as Fundamental Research "basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community".
 
In brief, two criteria are essential:
  • Basic and Applied Research
  • The researchers must be free to share the result of the research, so no restriction on publication is permitted
Examples of unacceptable restrictions:
  • University based research is not considered "fundamental research" if the University or its researchers accept (at the request, for example, of a sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. EAR 734.8(b)(5).
Warnings:
  • Tangible products of fundamental research (models, instrument, devices) are subject to Export Controls, and may require a license to ship outside the U.S.
  • Only the data, information resulting from the basic and applied research are considered as Fundamental Research, so excluded from export controls. However, some items used for the research can be export-controlled (EAR or ITAR) and remain controlled even when used in Fundamental Research. Sharing those items with non-U.S. persons is a deemed-export and may require prior U.S. government authorization.
  • Fundamental Research can be conducted only in the U.S. The exemption does not apply abroad, e.g., does not apply to a laboratory or field research site in another country outside of the U.S.
For more information about the correlation between Fundamental Research - controlled "use" technology - deemed export, please read the Deemed-Export - Guidance document and/or consult the BIS FAQ webpage.
 
3. "Educational Information" (EAR 734.9)
 
Educational information is defined as information released through catalog classes or labs at institutions of higher learning.
 
4. "Patent applications" (EAR 734.10)
 
5. Resulting from unrestricted "government-sponsored research covered by contract controls" (EAR 734.11)

 

See Also: ITAR 120.11