Exclusions from ITAR and EAR

Both the ITAR and the EAR have special provisions relating to information that is not subject to export controls—meaning it is not classified as either ITAR or EAR controlled, but rather is excluded because it is considered “public domain” under ITAR or “publicly available” under EAR.

Public Domain under ITAR

Under ITAR §120.11, “Public domain” information is not considered “technical data” under the ITAR and is therefore not subject to any restriction or licensing requirement. The ITAR defines information in the public domain as information which is published, and which is generally accessible to the public through:

  • sales at newsstands and bookstores;
  • subscriptions that are available without restriction to any individual who wishes to obtain or purchase the published information;
  • libraries, open to the public, or from which the public can obtain documents;
  • patents available at any patent office;
  • unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States;
  • fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
    • The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity;
    • or The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.

Publicly Available under EAR

Under EAR 15 C.F.R. 734.3(b)(3), “publicly available” means that except with respect to certain encryption technology and software, publicly available technology and software is not subject to any restriction or licensing requirement under the EAR. This includes information that has been or will be made publicly available by:

  • Publication in periodicals, books, print, electronic, or other media available for general distribution to a member of the public or to a community of persons interested in the subject matter;
  • Release or dissemination at open seminars, trade shows, conferences, or other open gatherings in the United States;
  • Readily available at public or university libraries; or
  • Patents and patent applications available at any patent office;
  • Information resulting from “fundamental research,” where the resulting information is ordinarily published and shared broadly within the scientific community

Fundamental Research

In an effort to establish national policy for controlling the flow of information produced in federally funded research at colleges, universities and laboratories, several universities worked with the Federal government to establish the National Security Decision Directive 189 (“NSDD”), National Policy on the Transfer of Scientific, Technical and Engineering Information on September 21, 1985. NSDD 189 provided the following definition of fundamental research that has guided universities in making licensing decisions relative to fundamental research exclusions provided under both the EAR and ITAR: Basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

Parameters of Fundamental Research

Most activities on OHIO campuses that involve the transfer of technical data under ITAR and deemed exports under EAR will fall under the “Fundamental Research Exclusion.” However, there are certain key restrictions which must be strictly followed. University activities or research will NOT be considered fundamental research, and therefore will be subject to the EAR, if:

  • publication of research results is subject to restriction or withholding of research results, or substantial prepublication review, by a sponsor (other than for the protection of patents and/or sponsor’s confidential proprietary information); or
  • the research is funded by the U.S. Government and is subject to specific access (such as restricting work by foreign nationals) and dissemination controls.

Similarly, under the ITAR, university activities/research in science and engineering at accredited institutions of higher learning in the U.S. will NOT be considered fundamental research, and is therefore subject to the ITAR if:

  • publication of scientific and technical information resulting from the activity is restricted; or 
  • the research is funded by the U.S. Government and is subject to specific access and dissemination controls

Education Information

Both the ITAR and the EAR address the issue of general educational information that is typically taught in schools and universities. Such information, even if it relates to items included on the USML or the CCL, does not fall under the application of export controls.

ITAR

Information in the public domain, or information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, is not considered “technical data” under the ITAR and is therefore not subject to any restriction or licensing requirement. TECHNICAL DATA means: information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of controlled articles. This includes information in the form of blueprints, drawings, plans, instructions, diagrams, photographs, etc. (ITAR 120.10(5)).

EAR

The EAR provides that publicly available "educational information" is not subject to the EAR if it is released by instruction in catalogue courses and associated teaching laboratories of academic institutions. For example, a university catalogue course will not be subject to export controls (and foreign students may attend) even though the technology is listed on the CCL, or the course contains unpublished results from laboratory research, so long as the university did not accept separate obligations with respect to publication or dissemination.