Fundamental research, contracts, and NDA's

Duke University’s default position on sponsored research is to maintain both the freedom to publish results and to decide who may participate in the research program (regardless of nationality).  To that end Duke seeks to uphold the “Fundamental Research Exclusion” as recognized by export controls regulations; publication or foreign national restrictions are to be negotiated out of sponsored agreements before acceptance.  Doing so ensures not only the appropriate academic freedoms but also removes research results from export controls’ purview.

"Fundamental Research" results are not subject to export licensing when:

  • Basic or applied research** in science or engineering is conducted in the United States.
  • The resulting information is ordinarily published and shared broadly in the scientific community.
  • There are no restrictions on the publication of research results, including no approval processes for publication.
  • There are no restrictions on the access and dissemination of information resulting from the research, including restrictions or approvals on the use of foreign nationals
**The U.S. Department of Defense Financial Management Regulations define basic and applied research as follows:
"Basic Research is  systematic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and of observable facts without specific applications towards processes or products in mind.  It includes all scientific study and experimentation directed toward increasing fundamental knowledge and understanding in those fields of the physical, engineering, environmental, and life sciences related to long-term national security needs.  It is farsighted high payoff research that provides the basis for technological progress.  Basic research may lead to: (a) subsequent applied research and advanced technology developments in Defense-related technologies, and (b) new and improved military functional capabilities......" 
"Applied Research is systematic study to understand the means to meet a recognized and specific need.  It is a systematic expansion and application of knowledge to develop useful materials, devices, and systems or methods.  It may be oriented, ultimately, toward the design, development, and improvement of prototypes and new processes to meet general mission area requirements.  Applied research may translate promising basic research into solutions for broadly defined military needs, short of system development.  This type of effort may vary from systematic mission-directed research beyond that in {Basic Research} to sophisticated breadboard hardware, study, programming and planning efforts that establish the initial feasibility and practicality of proposed solutions to technological challenges.  It includes studies, investigations, and non-system specific technology efforts.  The dominant characteristic is that applied research is directed toward general military needs with a view toward developing and evaluating the feasibility and practicality of proposed solutions and determining their parameters.  Applied Research precedes system specific technology investigations or development."

The safe harbor of the "Fundamental Research Exemption" applies only to technology and software resulting from the project and does not apply to:

  • the export of physical items
  • a sponsor's technical data
  • encryption software or technology
  • classified information
  • Military/space-related research conducted overseas

Note that under certain circumstances the institution may deem it appropriate to accept restrictions that will nullify the Fundamental Research Exclusion.  By doing so the results of the research become subject to export controls regulations and dissemination to foreign nationals is restricted until the sponsor approves publication.  As it is the policy of Duke University to abide by all export controls regulations, a plan must be put in place to manage any technology or software resulting from such export-controlled research.

Examples of restrictions which may nullify the fundamental research exclusion include:

  • Research members accept restrictions or approvals for publications or the use of foreign nationals
  • Prepublication review with the right to withhold portions of the research results from publication
  • Approval required from sponsor to use foreign nationals on a project
  • Research, or portions thereof, must be conducted at a secure facility
  • Researchers and/or assistants must have a security clearance
  • Research is restricted to U.S. locations for national security purposes

*Note that a restriction that is accepted by informal means (email, conversation) is still a restriction even if it does not appear in a grant/contract

Export controlled research process

How sponsored research with restrictive clauses is managed by Duke stakeholders
Step 1: Contract Review

Sponsored research agreements for campus schools and the School of Medicine are reviewed by Office of Research Support (ORS) and Office of Research Administration (ORA) respectively.  Any potentialpublication or foreign national restrictions are identified by these offices, with occasional input from Office of Export Controls (OEC).

Step 2: Negotiation

ORS and ORA will attempt to negotiate the clauses out of the agreement if possible.

Step 3: Waiver Review

When unsuccessful at negotiating out such clauses, ORS/ORA will advise PI accordingly.  At this stage the PI may wish to request a waiver from the Vice Provost for Research (VPR) to accept the clauses.  For Campus schools, the VPR, in consultation with the Research Policy Committee, will decide if the project is in the public interest and in keeping with Duke’s mission.

Note:  For the School of Medicine (SOM), faculty should request this waiver from the SOM escalation committee

Step 4: Control Plan

If a waiver to Duke’s policy on restrictive clauses is provided by the VPR the project’s Principal Investigator (PI) will need to work with OEC to develop a Technology Control Plan (TCP).  The PI will be responsible for adherence to this plan. 

The TCP will describe which export restrictions apply to the project and will delineate the controls (both physical and electronic) that will prevent unauthorized access to or disclosure of the project’s results.  

Note:  Any export-controlled sponsor inputs will be covered by the TCP as well.  Public domain information is exempt and may be shared freely.

Step 5: License (If Applicable)

If the PI wishes to involve foreign nationals on the project Duke must seek prior authorization from the relevant U.S. Government agency.  OEC will work with the PI to obtain such authorization via regulatory exemption or a license application.  If a license is granted by the government the PI will hold ultimate responsibility for compliance with its terms and conditions.

Note:  Where a license is required OEC can make no guarantee that one will be approved and granted by the government.  PI is also responsible for seeking sponsor’s approval for foreign nationals’ involvement whenever necessary. 

Step 6: Training

OEC will provide mandatory training on export controls and the particulars of the TCP to all who are engaged in the project.  PI is responsible for keeping OEC updated when new project members join.

Step 7: Periodic Audit

OEC will regularly check in on the project to ensure continued compliance with the TCP.  Monitoring questionnaires are to be completed by PI.

Step 8: Close Out

PI will follow predetermined course of action (as stipulated in TCP) for secure submission of results to sponsor and final disposition of any controlled inputs.  Results must continue to be treated as controlled until sponsor approves publication.

Non Disclosure Agreements

If you are a party to a Non Disclosure Agreement (NDA) at Duke University please take careful note of any markings or warnings on incoming information such as:

  • “ITAR-controlled”
  • “EAR-Controlled”
  • “DOE-controlled”
  • “Subject to export controls"
  • “Not for disclosure to foreign nationals”
  • Distribution Statements B, C, D, E, F, or X

If you discover a marking such as one of the above or believe that the information you have received (or are about to receive) is export controlled please contact export@duke.edu for further analysis.