Export Control Exclusions and Exemptions
The federal government recognizes the importance of academic freedom and the necessity of sharing research results, which is why certain export control exclusions and exemptions were implemented for qualified research conducted at accredited U.S. institutions of higher education. The main exclusions and exemptions are provided for fundamental research, information in the public domain, educational information, and bona-fide employees.
Fundamental Research Exclusion (FRE)
Basic and applied research in science and engineering performed by institutions of higher education in the U.S. qualifies for the Fundamental Research Exclusion as long as the research is carried out openly and without restrictions on publication, access to, or dissemination of the research results. Fundamental research is distinguished from proprietary research and industrial development, design, production and product utilization because the results of the latter are restricted for proprietary or national security reasons.
Research is not considered fundamental when there are restrictions placed on the publication, methods, and outcome of the research conducted. Proprietary research including industrial development, design, production, and product utilization of the research, of which are restricted and government funded, that specifically restrict the outcome for national security reasons are not considered fundamental research.
Examples of research restrictions that destroy the Fundamental Research Exclusion include:
- The research forbids the participation of foreign persons;
- The sponsor is given the authority to approve publications resulting from the research (this does not include a sponsor reviewing potential publications to remove proprietary information);
- Participation in and/or access to the research and research results have been restricted
The Fundamental Research Exclusion, as defined above, is not subject to export control regulations. This exclusion permits Florida Atlantic University (FAU) to participate in research that would otherwise be considered export controlled, without the need for obtaining an export control license. This exclusion does not permit the release, transfer, or transmission of export controlled items, software, or technology abroad, unless another exclusion or exemption is available.
NOTE: (1) The Fundamental Research Exclusion only applies to information; (2) The Fundamental Research Exclusion does not apply to a sponsor’s existing proprietary information when some or all the sponsor’s proprietary information is required to be held confidential; and (3) The Fundamental Research Exclusion may not apply to information related to export-controlled equipment used in research; (4) The Fundamental Research Exclusion does not apply to International Traffic In Arms Regulations (ITAR) regulated technologies, technical data, or equipment; and (5) certain “Strong Encryption” software and source code regulated under the Export Administration Regulations (EAR) does not qualify for the Fundamental Research Exclusion.
Publicly Available/Public Domain Exclusion
The Publicly Available/Public Domain Exclusion regards the sharing of technical data or information with a foreign person while in the U.S. as a part of a class, laboratory, or conference, or seminar. Under these situations, disclosures of technical data or information qualify under the Public Domain Exclusion if the same information or technical data has already been widely published, is accessible or available to the public, and is not restricted within that foreign national’s country of citizenship.
NOTE: The EAR and the ITAR differ on what is considered published information. The EAR requires that the information "has been", "is about to be", or "is ordinarily published", whereas, the ITAR requires that the information has already been published.
Educational Information Exclusion
The Educational Information Exclusion relates to the sharing of information that is commonly taught in colleges and universities (ITAR) or any educational information released by instruction in catalog-courses and their associated teaching laboratories (EAR). Under the Educational Information Exclusion, these two examples of disclosures are excluded from Export Control regulations.
NOTE: The Educational Information Exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government
Bona-fide Full-time Employees (BFE) Exemption (ITAR)
Under 2 CFR 125.4(b)(10), the International Traffic in Arms Regulations (ITAR) permits a university to disclose unclassified technical data by United States institutions of higher education to foreign persons in the United States so long as the foreign person is a bona-fide full-time employee of that institution.
This exemption is available to FAU only if:
- The employee’s permanent abode throughout the period of employment is in the United States;
- The employee is NOT listed as a national of a country listed in 22 CFR 126.1;
- The university informs the employee in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the U.S. Department of State;
This exemption is available to FAU so long as the disclosing party records the three requirements listed above, in addition to the description of technical data, the name of the recipient of technical data, the date and time of the disclosure, the method of disclosure, and referencing the specific ITAR regulation permitting the disclosure (22 CFR 125.4(b)(10)).
NOTE: The "full-time bona fide employee" requirement does not apply to FAU foreign students and postdoctoral researchers. FAU foreign students and postdoctoral researchers are not considered employees of FA