Exclusions/Exemptions from Export Control Regulations
There are several common exclusions and an exemption that may remove University research from the application of export control restrictions.
- Fundamental Research Exclusion
- Educational Instruction Exclusion
- Public Domain/Publicly Available Exclusion
- Exemption for Disclosures to Bona Fide Full-time Employees (ITAR-regulated research only)
Fundamental Research Exclusion
Fundamental research (basic or applied research in science and/or engineering at an accredited institution of higher learning in the U.S. resulting in information that is ordinarily published and shared broadly within the scientific community) is excluded from export control regulations. This means that when University research meets this definition, information (but not materials or technology) resulting from that research may be disclosed to foreign nationals and that such disclosures are not subject to export control restrictions.
University research will not qualify for this exclusion if: (1) the University or investigator accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication review by research sponsors to ensure that proprietary information is not inadvertently disclosed in publication or to ensure that publication will not compromise the patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or investigator.
It is important to remember two things about the fundamental research exclusion: 1) it applies only to information and 2) it does not apply to a sponsor's existing proprietary information when some or all of that information is required to be held confidential.
In addition, it is important to note that the exclusion may not apply to information relating to export-controlled equipment used in research projects and classes. Universities have assumed that they could share such information with foreign nationals without a license, since the information is being used while conducting fundamental research. However, recent interpretations by the federal government suggest that an export control license may be required in a fundamental research project before information about the use of controlled technology can be shared with foreign nationals working on the project. This is a currently developing issue and we will update these materials as the issue evolves.
Educational Instruction Exclusion
Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses. This means that a faculty member teaching a University course may discuss what might otherwise be export-controlled technology in the classroom or lab without an export control license even if foreign national students are enrolled in the course. This exclusion is based on the recognition in ITAR that "information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain" should not be subject to export control restrictions.
Public Domain/Publicly Available Exclusion
Information that is published and generally available to the public, as well as publicly available technology and software, is outside the scope of the export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
Public Domain is defined as information that is published and generally accessible to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions available without restriction to anyone who may want to purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the United States; (7) through public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research.
Exemption for Disclosures to Bona Fide Full-time Employees (ITAR-regulated research only)
ITAR regulations exempt disclosures of unclassified technical data in the U.S. by U.S. universities to foreign nationals where 1) the foreign national is the University's bona fide full-time regular employee, 2) the employee's permanent abode throughout the period of employment is in the U.S., 3) the employee is not a national of an embargoed country, and 4) the University informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without governmental approval.
This exemption is likely to be less available than the three exclusions discussed above. In addition, most graduate students are not regular full-time University employees and disclosures to them will not qualify for this exemption.