Exemptions
Export control laws prohibit the disclosure of controlled information without a license from the Department of Commerce or State. Methods of disclosure may include faxes, telephone discussions, e-mail communications, computer data disclosure, face-to-face discussions, training sessions, and even tours that involve visual inspections.
The licensing requirements for dissemination of information may not apply if one of the following exclusions applies.
Fundamental Research (FRE)
EAR:15 C.F.R. § 734.8(c), and ITAR: 22 C.F.R. § 120.11(8)
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 will not apply 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.
Furthermore, any "side deals" between a principal investigator (PI) or project leader (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 eliminate 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.
Public Domain/Publicly Available
EAR: 15 C.F.R. § 734.3(b)(3) and ITAR: 22 C.F.R §120.11
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, except for 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 university libraries;
- in patents and published patent applications available at any patent office;
- released at an open conference, meeting, seminar, trade show, other open gatherings; 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 15 C.F.R §. 734.3 (b) (iii) and ITAR 22 C.F.R. §120.10(b)
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.
The ITAR exempts from controls information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities.
Full-Time University Employees
While the ITAR provides an 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 before 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:
- employees' permanent abode is in the United States throughout the period of employment;
- employees are full-time, regular employees of the university;
- employees are not nationals of an ITAR proscribed country; and
- the university complies with certain additional legal requirements outlined 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.
Other Exemptions
Other export control exemptions not listed above may apply to GW research or other activities. Please contact the Office of Research Integrity & Compliance (ORIC) for further information.