Exclusions and Exemptions
Whether through teaching or research, a core principle of higher education is academic freedom and the free-flow exchange of information. The U.S. Government has recognized the need to maintain academic freedom, which is a reason why certain export control exclusions and exemptions were created specifically for certain research activities. Particularly, research that is performed at accredited U.S. institutions of higher education. Under the export control regulations, the primary exclusion is called the "Fundamental Research Exclusion." Other exclusions and exemptions under export control regulations include the "Publicly Available" or "Public Domain Exemption," and the "Bona-fide Employee Exemption."
Fundamental Research Exclusion (FRE)
Basic and applied research in science and engineering performed at institutions of higher education in the U.S. qualify under the Fundamental Research Exclusion as long as the research is carried out openly and without restrictions placed against its publication, participation, access, or dissemination of the research results. Fundamental research is distinguished from proprietary research and industrial development, design, production, and product utilization as the results of the latter may be restricted for proprietary or national security reasons.
The following list includes examples of activities where the FRE does not apply, as well as activities that destroy the applicability of the FRE:
- Restrictions placed on the participation in the research based on nationality
- Restrictions placed on the dissemination which limits who may be provided access
- Physical shipments or hand-carried exports of tangible goods/equipment
- Research performed abroad, regardless of whether it would have qualified for the Fundamental Research Exclusion if performed within the U.S.
- A Principal Investigator having a “side deal” with the sponsor
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 or Public Domain Exclusion relates to the sharing of technical data or information with a foreign person in the U.S. who receives such technical data or information as a part of a class, laboratory, conference, or seminar. Under these situations, disclosures of technical data or information qualify under the Public Domain Exclusion if the same technical data or information has already been widely published, is accessible or available to the public, and is not restricted by 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 Exemption (BFE)
Under the International Traffic in Arms Regulations (ITAR), disclosures of unclassified technical data by an accredited U.S. institution of higher education that is made to foreign persons in the U.S. are permitted 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 U.S.;
- The employee is NOT 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;
NOTE: In addition to the description of the technical data, the BFE’s third condition above requires the name of the individual who would receive the technical data, the date and time of the disclosure(s), the method of disclosure(s), and a reference to the specific ITAR regulation permitting the disclosure must be memorialized in a signed writing between the University and the BFE.
NOTE: The "full-time bona fide employee" requirement does not apply to foreign students or postdoctoral researchers as neither are considered employees of FAU under such circumstances.