Good News, the Special Case for Universities
Fortunately, EAR and ITAR export control regulations allow for information that qualifies as "publicly available" and the results of research that qualifies as "fundamental research" to be excluded from the regulatory requirements for approvals. This does not apply to physical shipments or information received under a non-disclosure agreement that need to be reviewed on a case-by-case basis.
For university-based research there are three ways that technical information may qualify for an exemption from the foreign national-deemed export licensing requirements and licensing requirements for transfer of information outside the U.S.
Contact us with any questions on these exemptions and exclusions.
- Publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or 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;
- Readily available at libraries open to the public or at university libraries;
- Patents and published patent applications available at any patent office;
- Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR). Note, a conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or selection based on relevant scientific or technical competence.
Educational instruction in science, math, and engineering taught in courses listed in catalogues and associated with teaching laboratories of academic institutions can be excluded.
Fundamental Research Exclusion
The Fundamental Research Exclusion (FRE) exempts most on-campus university research from export control licensing requirements.
- Covers: (1) information (not items), (2) resulting from “basic and applied research in science & engineering, (3) at an “accredited institution of higher education," (4) “located in the United States," (5) that is “ordinarily published and shared broadly within the scientific community.”
- Caveats: Does not apply to sponsor’s or third-party, export-controlled, or proprietary information. Applies only to fundamental research information – not to physical items or services such as training. Also, does not apply to development information.
Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to hold the research results as trade secrets (even if the voluntary cooperation of the researcher would be needed for the company to do so), then the research would no longer qualify as "fundamental". University based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project.
Export Licensing Exemptions for Physical Exports: Travelling with a Laptop or Other Tool of the Trade
UCI faculty, researchers, and staff often travel internationally in conjunction with their University responsibilities. In recent years, there has been increased government concern regarding University research activities and national security. It is important that the UCI community demonstrates awareness of foreign travel risks when traveling abroad on behalf of the institution.
Travelers are responsible for knowing how export controls apply when taking equipment, devices, software or technical data outside the US. In most situations, licensing is not required to take UCI owned items abroad under the TMP “tool of trade” license exception. However items such as laptops must remain under the traveler’s effective control during the trip. Additionally, information and data taken on laptops, PDA’s or storage devices must qualify as public domain. Other items such as research samples and devices, systems or software originally designed for military or space applications (such as a camera with a focal plane array or a high end GPS), technology associated with strong encryption and controlled biological agents will not qualify for this exemption.
If U.S. Customs and Border Protection (CBP) officials
suspect that a regulated item or defense article has been or will be exported
without a license, they may, examine files and software on laptop computers as
well as baggage. In addition, inspectors in other countries may detain and copy
hard drives. Prior to leaving the U.S. international travelers are encouraged
back up their hard-drives, remove all non-essential data from their devices.
To qualify for the
“tool of trade” exception, the export must:
- Be for less than one year.
- Be a piece of equipment that people in the traveler’s discipline would generally recognize as a “tool of trade.”
- Be under the traveler’s effective control. This means that the item must be kept in the traveler’s physical possession at all times, or secured in a hotel safe, a bonded warehouse, or a locked conference facility.
- The travel cannot include a sanctioned country (Cuba, Iran, North
Korea, Syria or Sudan).
Travelers should not take ANY of the following without first obtaining specific advice:
- Data or information received under an obligation of confidentiality.
- Devices, equipment or computer software received with restrictions on export to or on access by foreign nationals.
- Devices, systems or software specifically designed or modified for military or space applications (even if these items are used in an academic research setting).