Exclusions from Export Control Regulations
Please note that the exclusions below apply only to information and, in some cases, software associated with the research. These exclusions do not apply to equipment, articles, services, or encryption software.
Exclusions for Information That Is Publicly Available or In the Public Domain
A “public domain” exclusion applies if the information is in the public domain and is generally accessible to the public through unrestricted distribution. [15 CFR 734.3(b)(3) under the EAR; 22 CFR § 120.11 under the ITAR.] Public domain information (ITAR) and publicly available information and software (EAR) is published and generally accessible or available to the public through:
- Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public;
- Subscriptions that are available without restriction to any individual who desires to obtain or purchase the published information;
- Websites available to the public free of charge or at a cost that does not exceed the cost of reproduction or distribution;
- Libraries open to the public, including most university libraries;
- Patents and open (published) patent applications;
- Release at an “open” conference, meeting, seminar, trade show, or other open gathering in the US (ITAR) or anywhere (EAR), which is generally accessible by the public for a fee reasonably related to the cost and where attendees may take notes and leave with notes;
- Fundamental research (see below); or
- Educational information (see below).
Limited government-sponsored research exclusion: Certain government-sponsored research on goods, software, or technology subject to national security contract controls under the EAR may be eligible for an exclusion provided that the university abides by the government restrictions (15 CFR § 734.11).
Exclusion Relating to Fundamental Research
The export control regulatory schemes acknowledge the importance of open, fundamental research at universities. Basic and applied research in science and engineering conducted on campus resulting in information that is ordinarily published and shared broadly within the scientific community is generally considered to be “fundamental research” and is excluded from export license requirements. Generally speaking, the results of fundamental research are in the “public domain” under ITAR and are not subject to the EAR under the provisions related to “publicly available technology,” “published information and software,” “information resulting from fundamental research,” and “educational information.”
Note that the fundamental research exclusion for universities does not apply to faculty or students who are performing research at companies, including companies that license university technology. The fundamental research exclusion applies only on campus.
In order to be considered “fundamental research,” the research cannot be subject to restrictions on the publication of the information resulting from the research and cannot exclude participation of foreign nationals. If the university or the researcher accepts broader restrictions on the publication of the results—whether formally (such as in a sponsored research agreement) or informally (such as a “handshake” agreement)—or has agreed to accept specific national security controls, then the fundamental research exclusion will not apply.
By qualifying under the fundamental research exclusions of EAR and ITAR, the university generally can avoid the problems associated with “deemed exports” of technical data. In this manner, a university can maintain its open research and education environment while also complying with the export regulations.
Note: If you have any questions, please contact Marie Hladikova, Director of Export Control, at 617-353-6753 or by email at firstname.lastname@example.org.
Educational Information Exclusion
A “teaching” exclusion allows for the disclosure of educational information that is released by instruction in courses identified in the university catalog and associated teaching laboratories of academic institutions (EAR 15 CFR § 734.9), or information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities [ITAR 120.10(a)(5)].