Export Controls: Exclusions

Fundamental research (basic or applied research at an accredited institution of higher learning in the US that results in information that is ordinarily published and shared broadly within the scientific community) is excluded from the EAR and ITAR export control regulations.  This means that when a research activity meets this definition, information resulting from that research may be disclosed to foreign nationals and that disclosure is not subject to the relevant export control restrictions.

However, Export Controls will apply if the University or researcher 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. 

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 because the information is being used while conducting fundamental research.  However, recent interpretations by the federal government would seem to require that an export control license be obtained 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 US government has imposed access or dissemination controls as a condition of funding.

Exemption for Disclosures to Bona Fide Full-time Employees

Export control regulations exempt disclosures of unclassified technical data in the US by US 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 US, 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.