Export Controls: Exclusions

Fundamental Research
Public Domain
Educational Information

Full-Time University Employees

Export controls laws prohibit the disclosure of information without a license from Commerce or State of controlled technical information by any method to a foreign national in the U.S. or abroad. Methods of disclosure can include: faxes, telephone discussions, e-mail communications, computer data disclosure, face-to-face discussions, training sessions, and even tours that involve visual inspections. However, the licensing requirements for dissemination of information do not apply if one of the following exclusions applies to a specific educational activity.

Fundamental Research (EAR and ITAR):

The U.S. export control laws provide for a Fundamental Research Exemption (FRE) from the licensing requirements for information arising during or resulting from fundamental research conducted at an accredited institution of higher learning located in the United States. If research or other activity controlled for export is eligible for the FRE, and not otherwise restricted by ITAR or OFAC regulations, Foreign Persons located on U.S. soil may participate in the research. It is important to note that even though the research results (output data) may be eligible for the FRE and accessible to Foreign Persons; information received from the sponsor (input data) may still be restricted to U.S. persons only, depending on its export classification.

In general, the FRE is destroyed if GW accepts any contract clause that:

  • Forbids the participation of foreign persons
  • Gives the sponsor a right to approve publications resulting from the research;  OR
  • Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

Also, any "Side deals" between a PI or PL and the Sponsor or other party to comply with such restrictive requirements even though not stated in the research or other educational activity contract are improper and  may also destroy the FRE as well as expose both the individuals involved and the university to penalties for export control violations. Such side deals may also violate other university policies. For more information, please see the GW Conflict of Interest website.

Public Domain/Publicly Available

This exclusion represents the broadest exclusion under the EAR and ITAR. Specifically, it allows both deemed exports as well as exports from the U.S. of information and software that is already published, with the exception of certain encryption software. While the EAR and the ITAR define "publish" somewhat differently, essentially under both regulatory regimes information becomes published when it is generally accessible to the interested public in any form such as:

  • readily available at libraries open to the public or at university libraries;
  • in patents and published patent applications available at any patent office;
  • released at an open conference, meeting, seminar, trade show, other open gathering; or
  • published in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution

Educational Information Exclusion (EAR and ITAR)

The ITAR exempts from controls information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities.

The EAR exempts from controls information that is "educational"—i.e., information released by instruction in catalog-listed courses at the university, including through lectures, instruction in teaching laboratories, and inclusion in course materials. The EAR's "educational information" exemption also extends to software, with the exception of certain encryption software.

Full-Time University Employees

While the ITAR provides exclusion for releases of ITAR-controlled technical data to bona fide full-time regular employees of the university, any such activities should be coordinated with Export Control in advance to enable review and verification prior to any such release. Under this exemption, the university is authorized to release ITAR-controlled technical data to foreign persons who are employees of the university within the United States, provided that:

  • the employees' permanent abode is in the United States throughout the period of employment;
  • the employees are full-time, regular employees of the university;
  • the employees are not nationals of an ITAR proscribed country; and
  • the university complies with certain additional legal requirements set forth in the ITAR.

It is important to note that this ITAR exclusion generally is not available to graduate and undergraduate students. Also, this exclusion does not authorize exports of items, software, or technical data outside the United States. The EAR does not include a similar exclusion.