Both the ITAR and the EAR recognize a number of important exemptions and exclusions to the Export Control Laws. Of particular relevance to the Washington University community are the Fundamental Research Exclusion (FRE), the Public Domain Exclusion, and the Educational Information Exclusion.
Fundamental Research Exclusion
Information from “fundamental research” is excluded from export control laws. It is the University’s policy, whenever possible, to conduct its research activities under the Fundamental Research Exclusion. Although the definitions of “fundamental research” vary slightly between the ITAR (22 CFR § 120.11(a)(8)) and the EAR (15 CFR § 734.8), both are based upon the Reagan Administration’s National Security Directive 189, which defines fundamental research as:
“Basic or applied research in science and engineering at an accredited institution of higher learning, 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 is NOT available when:
- Publication restrictions are accepted from the sponsor (beyond a brief review for proprietary information)
- Access or participation restrictions are accepted from the sponsor
Even if the basic project is determined to be fundamental research, the following aspects are still subject to export controls:
- Work done outside the U.S.
- Shipping of tangible items
- Encryption software/source code
- Export controlled proprietary information
- Development or “Use” of equipment (operation, installation, maintenance, repair, overhaul AND refurbishing)
- Foreign National access to technologies, equipment, or technical data controlled under the ITAR
Though broadly defined, faculty and investigators should be mindful that the FRE does not apply to all University activities. Many clinical activities (such as patient care), for example, would not qualify as “research” in “science” or “engineering” and would therefore be ineligible for the FRE.
Public Domain Exclusion
Both the ITAR and the EAR exclude from their export licensing requirements any information that is already in the public domain. (22 CFR §120.11 (a) (ITAR)); (15 CFR §734.9 (EAR))
Information may be considered “published” and hence in the “public domain” when it is generally accessible to the interested public through:
- Libraries (public or university)
- Periodicals, books, print, or other media
- Patents and patent applications
- Conferences, meetings, seminars, trade shows, or exhibits open to the public or technically qualified public.
- Websites accessible to the public
Educational Information Exclusion
Both the ITAR and the EAR recognize a related exclusion for “educational information” that has become part of the public domain through academic instruction. Under the EAR, the exclusion applies to information that is publicly released through instruction in catalog courses and associated teaching laboratories (15 CFR §734.9). Under the ITAR, the exclusion applies to information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities. (22 CFR § 120.10(b)).