Export Controls Exclusions and Exceptions

Publicly Available (EAR) or Public Domain (ITAR) Information
Export controls do not apply to information that is already published and widely available from:

  • libraries, book stores or newsstands
  • trade shows, meetings or seminars that are open to the public
  • published patent information
  • web sites that are accessible to the public
  • courses listed in university catalogs.

The Department of Commerce defines this information as “Publicly Available” in the Export Administration Regulations (EAR), while the Department of State defines this information as “Public Domain” in the International Traffic in Arms Regulations (ITAR).

This exclusion may be void if the university or PI accepts any of the following conditions, regardless of sponsor:

  • prepublication reviews
  • sponsor approvals or conditions on publication or information
  • foreign national controls or approvals
  • access and dissemination controls on the research
  • national security controls.

 

Fundamental Research Exclusion
National Security Decision Directive (NSDD) 189 defines fundamental research as basic or applied research in science and engineering at an accredited institution of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.

  • Note: In a Nov. 1, 2001 memo, Condoleezza Rice, in her role as assistant to the President for National Security Affairs, reiterated that NSDD 189 remains in effect.

The FRE generally applies provided there are no:

  • restrictions to access or dissemination of the research or information
  • restrictions to access by foreign nationals
  • restrictions on proprietary/confidential information.

The FRE may not apply and an export license may be necessary if a project involves shipping controlled items to a sanctioned country and/or restricted person.

The FRE is void if the university:

  • accepts any restrictions on the publication of information
  • gives a sponsor the right to approve publications
  • limits access of foreign nationals
  • applies these limitations to any sponsor.

 

Educational Information Exclusion (EIE)
The EIE allows teaching commonly taught information at universities to continue.

For the Department of Commerce (EAR), the EIE:

  • focuses on venue
  • export controls do not apply to educational information conveyed in courses listed in course catalogs and associated teaching laboratories
  • does not cover encrypted software
  • this exclusion may be void if that same information is transferred to a foreign national outside of class.

For the Department of State (ITAR), the EIE:

  • focuses on subject matter
  • only covers general science, math and engineering principles commonly taught in universities.

 

Employment Exclusion
Under ITAR (not EAR), full-time employees have a license exemption. This exemption applies to disclosures in the U.S. by U.S. universities of unclassified technical data to foreign nationals.

However, this exclusion may be void unless these conditions are met:

  • the person must be a full-time, regular employee - post-docs, students and visiting researchers usually do not qualify
  • the employee must have a permanent U.S. residence during his or her period of employment
  • the employee is not a foreign national of an embargoed country
  • the university must notify the employee in writing that technical data cannot be transferred or re-exported to other foreign nationals without prior government approval.

 

Laptops, GPS and Other Equipment
When you travel outside the U.S. with your laptop computer, PDA, cell phone, data storage devices and/or encrypted software you may need an export license to take that equipment with you.

A laptop is generally an exception to the EAR and ITAR lists of controlled items/equipment. However, this exception is NOT automatically allowed:

  • a license is required when a laptop with controlled research data or encrypted/proprietary software is hand-carried or shipped abroad to a restricted country and/or to a denied person/entity
  • for example: A laptop being hand-carried to any country with research data on a genetically modified organism will currently require a license
  • genetically modified organisms are controlled items for chemical, biological and anti-terrorism reasons and there are no applicable license exceptions

You should follow these practices when hand-carrying a laptop or other portable equipment outside the U.S:

  • you MUST retain exclusive control of the equipment at all times
  • you MUST not let the equipment be used by anyone in the foreign country.