Export Control Laws Applicable to University Research

The U.S. export control regulations include a number of provisions that exclude or exempt most university activities in the United States from the export licensing requirements.  It is extremely important for members of the university community, and researchers in particular, to understand the scope of these provisions and the circumstances under which university-based activities may become subject to export control restrictions.

The Commerce Department has published additional guidance and “Frequently Asked Questions” relating to these provisions of the EAR in Supplement No. 1 to Part 734 of the EAR.  Note, however, that there are some significant distinctions between the ITAR and the EAR with respect to the issues discussed below.  It is always advisable to consult with the USC Office of Culture, Ethics and Compliance before engaging in activities relating to military or defense-related applications or technology.

Fundamental Research

The export control regulations do not apply to the results of “fundamental research” at universities and other institutions of higher learning.  Under the EAR and the ITAR, fundamental research is defined to mean “basic and applied research” in science and engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly within the scientific community.  Fundamental research is distinguished from research where the results are subject to access or publication restrictions for proprietary, national security or foreign policy reasons.

University research generally 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. (Note, however, that the EAR differs from the ITAR on this point.  The EAR explicitly allows universities to accept such U.S. government restrictions without compromising the program’s “fundamental research” status, as long as the university fully complies with government requirements.)

The export control regulations also distinguish between the research results and the activities undertaken during the conduct of the research.  First, even where the university accepts prepublication review requirements or publication restrictions with respect to information provided by a research sponsor (i.e., restrictions on “input” information from the sponsor), the university still may treat information resulting from the research (i.e., the “output” information resulting from the university’s research) as “fundamental research,” as long there are no restrictions on the publication of the “output.”  However, any restricted “input” information would be subject to export controls and the university would need to determine whether export licenses were required before allowing foreign nationals to have access to that “input” information or exporting that information to a foreign location.

Second, even where the research qualifies as “fundamental research,” the export control regulations still may impose restrictions on equipment or software used in the course of the research.  For example, export licenses may be required to physically export such equipment or hardware to a foreign location, or to provide technical training or detailed technical data relating to such controlled hardware or software to a foreign person within the United States.

Academic Courses and Related Course Materials

The export control regulations do not apply to information released in connection with catalog-listed courses at the university, including through lectures, instruction in teaching laboratories and inclusion in course materials. Accordingly, the participation of foreign national students in such academic courses generally does not raise export control concerns.

Published or Public Domain Information

The U.S. export control and sanctions regulations also do not apply to information that is published or is otherwise generally available to the public. (See definitions below.)

ITAR Exemption for Full-Time University Employees

In addition to the categories of information above that simply are not subject to the export control regulations, the ITAR provides a specific “license exemption” for releases of ITAR-controlled technical data to bona fide full-time regular employees of the university.  Under this license exemption, the university is authorized to release ITAR-controlled technical data to such foreign national employees within the United States, provided that (i) the employees’ permanent abode throughout the period of employment is in the United States; (ii) the employees are full-time, regular employees of the university; (iii) the employees are not nationals of an ITAR proscribed country; and (iv) the university complies with certain additional legal requirements set forth in the ITAR. This ITAR exemption generally is not available for graduate and undergraduate students.

Note that the EAR does not include a similar license exemption (or “license exception,” as they are referred to in the EAR). Accordingly, it is important to consult with the USC Office of Culture, Ethics and Compliance before relying on this ITAR license exemption.