Exclusions, Exemptions, and Exceptions
Export Control Guidance Topics
Export Control regulations provide some Exclusions, Exemptions, and Exceptions in which export control regulations do not apply. Some commonly used at Rutgers are:
- Fundamental Research Exclusion;
- Public Domain/Publicly Available Exclusion;
- Educational Instruction Exclusion;
- Baggage (BAG) License Exemptions;
- Temporary Imports, Exports, Re-exports, and Transfers (In-Country) (TMP) License Exception [“Tools of the Trade”]
***Definition of “Use” Techology: For technology to be considered under the activity of "use" it must have all six elements of the definition of "use": operating, installing, maintaining, repairing, overhauling, and refurbishing. If any of the six elements are not included, the activity may not be “Use” and it would not require an export license.
***An Export Control Classification Number (ECCN) is a five-character alphanumeric key used in the Commerce Control List (CCL) to classify US exports and determine whether an export license is needed from the Department of Commerce.
Rutgers University is eligible to participate in the Fundamental Research Exclusion (FRE). Research which meets the criteria of “Fundamental Research” as defined by Export Control Regulations is eligible for the FRE. The FRE allows the results of this type of research to be shared without the need for an export license, even if they relate to items or technologies that are otherwise controlled.
Please note the distinction made that sharing the results of this type of research is exempt, but this does not exclude, from export control regulations, the process of producing these results.
Does the information and software involved in your research meet all of the following criteria:
- results from basic and applied research in science and engineering conducted at an accredited institution of higher education located in the US;
- is ordinarily published and shared broadly within the scientific community; and;
- is not restricted (either by written agreement or by informal understanding) for proprietary reasons or specific national security controls, or subject to specific US Government access and dissemination controls.
NOTE: The ITAR Exemption for fundamental research is not as broad as the EAR Fundamental Research Exclusion. Please refer to ITAR §123.16.
Fundamental Research Exclusion (FRE) eligible research must meet all of the following requirements:
- Must meet all definition of “Fundamental Research” as described by US Government Agencies.
- Must be conducted at a US based “accredited institution of higher education” (EAR) or place of “higher learning” (ITAR)
- Must be conducted with the intent to publish the results.
- Must be basic or applied research in science and engineering NSDD-189.
Definitions of Fundamental Research
Different government agencies provide their own definitions of Fundamental Research. Your research must match all applicable definitions for the exempt to apply.
- NSDD 189, National Policy on the Transfer of Scientific, Technical and Engineering Information
- ITAR 22 C.F.R. § 120.11(8) Public Domain
- EAR 15 CFR 734.8 - Information Resulting From Fundamental Research
Fundamental Research Exclusion Invalidators
These are some of the most common reasons for research to lose its FRE Exemption:
- Contains publication/dissemination or access restrictions (i.e. your project is not subject to publication approval by sponsors or the government) even if funded by the US government, private, or nonprofit sponsor.
- Involves proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. Which is a reason for a restriction on publication.
- Includes restriction on publication to ensure the patent rights of the sponsor.
- Sponsor includes requirement to approve publication.
- Forbids participation of foreign national in research activity.
- Contains citizenship-based restrictions on who may be included on the research team).
- Involves physical shipment of goods.
- Involves use of equipment controlled by ITAR (defense related technology).
- Some types of Specific Software (e.g. encryption).
- Contains certain types of encryption source code.
- Research which is not intended for publication.
- Research includes work done outside the US.
- Any research which involves “development” as defined in 15 CFR 772 (EAR 2016) defines development as being "related to all states prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.
- Involves any agents or the toxins above the minimum allowable amounts, as detailed by the U.S. Government Policy for Oversight of Life Sciences Dual Use Research of Concern for a well-defined subset of life sciences research that involves 15 agents and toxins and seven categories of experiments.
- Contains confidential technical information received from an outside party, such as a government or industry sponsor.
- Deals with military or dual-use technologies listed within the export control regulations.
- Research results will only be shared at a closed conference instead of an open conference: 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.
Information that is published and generally available to the public, as well as publicly available technology and software is outside the scope of the export control regulations because both the ITAR and the EAR exclude from their export licensing requirements in. (22 CFR §120.11 (a) (ITAR)); (15 CFR §734.9 (EAR) ) and are allowed to be shared including with a foreign national inside the U.S.
This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
Public Domain is defined as information that is published and generally accessible to the public:
- through sales at newsstands and bookstores;
- through subscriptions available without restriction to anyone who may want to purchase the published information;
- through second class mailing privileges granted by the U.S. Government;
- at libraries open to the public or from which the public can obtain documents;
- through patents available at any patent office;
- through unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the United States;
- through public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant US government department or agency; and
- through fundamental research.
Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses. This means that a faculty member teaching a University course may discuss what might otherwise be export-controlled technology in the classroom or lab without an export control license even if foreign national students are enrolled in the course.
This exclusion is based on the recognition in ITAR that "information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain" should not be subject to export control restrictions.
The education exclusion does not apply to proprietary information and certain information deemed classified or sensitive by the federal government.
Scope. This License Exception authorizes individuals leaving the United States either temporarily (i.e., traveling) or longer-term (i.e., moving) and crew members of exporting or reexporting carriers to take to any destination, as personal baggage, the classes of commodities, software and technology described in this section.
Eligibility. Individuals leaving the United States may export or reexport any of the following commodities or software for personal use of the individuals or members of their immediate families traveling with them to any destination or series of destinations.
Individuals leaving the United States temporarily (i.e., traveling) must bring back items exported and reexported under this License Exception unless they consume the items abroad or are otherwise authorized to dispose of them under the EAR §740.14 Baggage (BAG).
Regular office devices usually do not require an export license, under the “Tools of Trade” License Exception. This would apply if you are traveling temporarily out of the US and hand carry certain types of hardware, software and/or data.
This license exception may be used by Rutgers employees and students traveling with personally-owned or Rutgers owned hardware, software and data provided that the terms of the license exception are met.
Your device(s) must also be properly secured (encrypted, password protected, etc.) before, during and after travel. Encryption software that is not commercially available on a mass market may be regulated or restricted from being brought into some countries.
This exception does not apply to items, technology, data, or software regulated by the International Traffic in Arms Regulations (ITAR).
Any commercial item traveling on-person, with allowable carry-ons, or with checked luggage are considered a hand-carried export. While it is strongly encouraged that commercial items be handled by approved freight forwarders and clearing agents, there are situations which may require a hand-carried export during employee travel.