Several common exclusions and an exemption may remove University research from the application of export control restrictions. It is your responsibility to determine if material in your possession or
Fundamental Research Exclusion
As used in the export control regulations, fundamental research includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States, where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from other types of research that results in information, which is restricted for proprietary reasons or restricted pursuant to specific U.S. government access and dissemination controls. If the research falls under the Fundamental Research Exclusion, no further concern about the need for an export license would arise.
GS research will not be deemed to qualify for this exclusion if: (1) GS or the GS affiliated Investigator accepts any restrictions on the publication of the information resulting from the research, other than limited pre-publication review by research sponsors to ensure that proprietary information is not inadvertently disclosed in publication or to ensure that the 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 GS or the Investigator. All contracts should be signed by the Executive Director for The Research Services Foundation prior to GS acceptance. The Foundation will seek to negotiate out any publication restrictions imposed.
IMPORTANT NOTE: Remember three key facts about the Fundamental Research Exclusion:
(1) it applies only to the dissemination of research data and information, not to the transmission of material goods [see “(3)” below];
(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: and
(3) the following NEVER qualify for the Fundamental Research Exclusion:
- Physical goods
- Research when there is no intention to publish the results
- Research conducted outside of the United States
- Information related to export controlled equipment used in research projects and classes – even in the pursuit of fundamental research aims.
Cautionary Note: “Side deals” between an Investigator and a sponsor destroy the Fundamental Research Exclusion and may violate University policies on “Openness in Research.” A “side deal” may occur where any Investigator has a private agreement with a sponsor whereby they will conduct their research project in a manner that will permit the sponsor the right to approve a publication and/or to restrict foreign nationals on a research project to comply with the sponsor’s requirements. Such actions can destroy the Fundamental Research Exclusion and can expose both the individual Investigator on the project and University to penalties.
Public Domain and 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 (22 CFR 120.11) means information that is ALREADY published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions that are available without restriction to any individual who desires to obtain or 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, including most Libraries; (5) through published patents; (6) through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States (ITAR) or anywhere (EAR); (7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency, including websites accessible to the public for free and without the host’s knowledge of or control of who visits or downloads the software and/or information (clearly acceptable under EAR and likely acceptable under ITAR); and (8) through fundamental research.
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. Material discussed in this manner should be relevant to the course material and pertinent to class proceedings to meet this exclusion.
Exemption for Disclosures to Bona Fide Full-time Employees (ITAR only)
Export control regulations exempt disclosures of unclassified technical data in the United States 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 United States; (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, so that disclosures to them will not qualify for this exemption. Please consult with the Research Compliance Office and General Council before relying on this exemption.
TMP Exception (15 CFR 740.9) Tempory imports, exports, reexports, and transfers (in-country) of University owned equipment
License exception TMP, allows for the temporary (up to one year) export or re-export of certain items, technology, and software subject to the EAR for professional use such as laptops, cell phones, and digital media storage devices. This exception is also considered the “Tools of the Trade” exception and can be used in most cases where University owned equipment is taken overseas. However, this exception cannot be applied to faculty or staff owned computers or equipment, space-related technology, high-level encryption technology, or any items that are subject to ITAR. This exception is also not available for travel to embargoed countries such as Iran, Syria, North Korea, Cuba, or Sudan.
In order to make use of this exception, the items in question must be hand carried into the country of destination and must be returned to the US, consumed, or destroyed within a 12 month period. This exception also requires that the person using this equipment maintain effective control at all times over this equipment (defined as retaining physical possession of an item or keeping it secured in a bonded warehouse or locked hotel safe).
A similar exception exists for personal items entitled BAG for temporary export of personal items. This exception applies to faculty or staff owned computers or equipment but cannot be used for space-related technology, high-level encryption technology, or any items that are subject to ITAR and does not apply to embargoed countries.