Licenses and Exclusions

 

pictureA license is NOT required to disseminate information if one of these exclusions applies:

  • Fundamental Research Exclusion (ITAR, EAR)
  • "Published" Information Exclusion
  • Education Exclusion (ITAR, EAR)
  • Employment Exclusion (ITAR only)

Additionally, anything in the public domain is not controlled under the export regulations.

Fundamental Research Exclusion (FRE)

The term Fundamental Research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

The Fundamental Research Exclusion is DESTROYED IF the university accepts any contract clause that:

  • Forbids the participation of foreign persons
  • Gives the sponsor a right to approve publications resulting from the research; or
  • Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

"Published" Information Exclusion

Information is "published" (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:

  • Publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access);
  • Readily available at libraries open to the public or at university libraries;
  • Patents and published patent applications available at any patent office; and
  • Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).

pictureNote, a conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations.

The Education Exclusion

Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for "fundamental research" to qualify as "publicly available."

The Employment Exclusion (ITAR only)

An ITAR license not required for colleges and universities to share information in the U.S. with a foreign person if that person:

  • Is a bona fide employee of the university full time with benefits
  • Is not a national from an ITAR embargoed country
  • Resides at a permanent address in the U.S. while employed
  • And, is advised in writing not to share covered technical data with any other foreign nationals without government approval.

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