For guidance on maintaining continuity of research and sponsored program activities during the COVID-19 crisis, please see ORSP’s Keep Discovering page.

5 - Exclusions and Exemptions Under the Export Rules

Publicly available information is excluded from export regulations under both EAR and ITAR. Note: Even though the information itself may not be subject to export control, the activity for which it is used may still be controlled — such as a defense service under ITAR or a service to an embargoed country.

These exclusions apply only to research results. They do not apply to controlled equipment and/or services, such as training foreign nationals inside or outside the U.S. on defense articles. A PI could have a contract that places no restriction on publishing research results or access to the project but requires a license for the PI to send controlled equipment to a foreign collaborator.

ITAR Exemptions

Under ITAR, the exclusion for publicly available information is made indirectly, by specifying that such information is not included in the definition of “technical data,” as that term is used with regard to the controls under ITAR. ITAR references publicly available information as being “public domain.” The term “public domain” under ITAR does not mean dedicated to the public, which is the definition under intellectual property law. Under the EAR, the exclusion for publicly available information is more directly and expressly made.

Under ITAR, public domain means information which is published and which is generally accessible or available to the public:

  1. through sales at newsstands and bookstores;
  2. through subscriptions which 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;
  5. through patents available at any patent office;
  6. through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
  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; or
  8. through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or where specific U.S. Government access and dissemination controls apply.

University research will not be considered fundamental research if:

  1. the university or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or
  2. the research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.

ITAR also expressly excludes from the definition of “technical data,” and thus from control, information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.

ITAR Employee Exemption

In addition, ITAR specifically exempts from the requirement of a license disclosures of unclassified technical data in the U.S by U.S. institutions of higher learning to foreign persons who are their bona fide and full time regular employees. This exemption is available only if:

  1. the employee’s permanent abode throughout the period of employment is in the United States;
  2. the employee is not a national of a country to which exports are prohibited pursuant to Sec. 126.1 of ITAR; and
  3. the institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Department of State. (See Export Control Nondisclosure Statement form.)

Determinations on whether a foreign national qualifies for this exemption must be done on an individual basis by the Office of Research and Sponsored Programs (ORSP). Qualified individuals must sign the Certification on the Handling of Export-Controlled Information to document that the technical data that he or she receives may not be transferred to other foreign persons without the prior written approval of the Directorate of Trade Defense Controls [22CFR 25.4(b)(10)].

Further, ITAR includes an exemption from the licensing requirement for certain items and defense services for space applications by accredited U.S. institutions of higher learning when the items or services are for fundamental research and are for organizations in certain countries, such as those belonging to NATO.

EAR Exemptions

The following items are not subject to the EAR:

  1. Items that are exclusively controlled for export or re-export by certain other departments or agencies of the U.S. Government;
  2. Prerecorded phonograph records reproducing, in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals; printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals; children’s picture and painting books; newspapers and periodicals, unbound, excluding waste; music books; sheet music; calendars and calendar blocks, paper; maps, hydrographical charts, atlases, gazetteers, globe covers, and globes (terrestrial and celestial); exposed and developed microfilm reproducing, in whole or in part, the content of any of the above; exposed and developed motion picture film and soundtrack; and advertising printed matter exclusively related thereto.
  3. Publicly available technology and software, except certain encryption software, that:
    1. are already published or will be published as generally accessible to the interested general public in any form, including
      • in periodicals, books, etc;
      • ready availability at libraries;
      • in patents and published patent applications;
      • released at an open conference, meeting, seminar, trade show, or other open gathering; or
      • submissions of papers to domestic or foreign editors or reviewers of journals or to organizers of open conferences with the understanding that the papers will be made publicly available if favorably received;
    2. arise during or result from fundamental research;
    3. are educational information released by instruction in catalog courses and associated teaching laboratories of academic institutions; or
    4. are included in certain patent applications.

Fundamental research is defined in the EAR as basic and applied research in science and engineering, where the resulting information is ordinarily 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 reasons or specific national security reasons. Research conducted by scientists, engineers or students at a university (defined as an accredited institution of higher education in the United States) normally will be considered fundamental research.