Export Control University Exceptions

Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) export control regulations allow for "publicly available, fundamental research" results to be excluded from the regulatory requirements for approvals or licenses. This does not apply to physical shipments that need to be reviewed on a case-by-case basis.

For university-based research there are three ways that technical information may qualify for an exemption from the foreign national-deemed export licensing requirements and transfer of information outside the U.S.

Publicly Available Research

If the research is publicly available, ITAR and EAR regulations allow for exemptions. Information is "published" when it becomes accessible to the public in any form including:

• Publication in periodicals, books, print, electronic or other media available for general distribution or through unrestricted subscription
• Readily available at public libraries or at university libraries
• Through patents or published patent applications available at any patent office
• Through unlimited distribution at an open conference, meeting, seminar, trade show or other open gathering held in the United States. Presentations abroad may still require a license and Export Control office should be consulted.

Limitations to the Publicly Available Exemption

To qualify for the publicly available information exemption, the following must be true:

• No equipment or encrypted software involved
• No reason to believe information will be used for Weapons of Mass Destruction
• U.S. government or funding entity has not imposed any access or dissemination controls as a funding condition

Educational Information Exclusion

Educational instruction in science, math, and engineering taught in courses listed in catalogs and associated with teaching laboratories of academic institutions can be excluded, even if the information includes controlled commodities or items.

With the exemption from ITAR, the exclusion covers only general principles and not specific information and technical data about ITAR controlled items (“defense articles”). Specific information about defense articles, including operation manuals, data sets, blueprints, may not be released to foreign nationals, even in an instructional environment, unless such technical data is otherwise excluded or exempt from ITAR or released under an applicable license or license exemption.

Fundamental Research Exclusion

The Fundamental Research Exclusion (FRE) removes most university research activities from U.S. export control licensing requirements. Fundamental research is defined as basic or applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community, and where the university has not accepted restrictions on publication or access based on citizenship or nationality.

Under the FRE, foreign members of the University community may participate in on campus research in the United States without a deemed export license to the extent they are accessing information that arises from, or is an integral part of, fundamental research. Technical information resulting from fundamental research may generally be shared with foreign collaborators, including collaborators outside the United States, without an export license. However, the FRE applies to information only and does not extend to export controlled physical items, proprietary information, or controlled background technical data provided by sponsors or third parties.

The Fundamental Research Exclusion (FRE) does not apply when:

• The University or its researchers accept restrictions on the publication of scientific or technical information resulting from the research, other than limited prepublication reviews by sponsors solely to prevent the inadvertent disclosure of proprietary information or to ensure that publication does not compromise patent rights.
• Research sponsors impose access, dissemination, or participation restrictions that limit the involvement of non U.S. persons.
• Exporting, shipping, hand carrying, or otherwise transferring export controlled physical items, materials, equipment, or software, including ITAR controlled items, outside the United States or to international waters.
• Providing defense services or assistance involving ITAR controlled technical data or defense articles to foreign persons or entities, whether inside or outside the United States.
• The activity constitutes a service, testing, fabrication, or production activity rather than bona fide research intended to generate publishable knowledge.