The Export Administration Act with its associated implementing regulations—The Export Administration Regulations (EAR) and Section 38 of the Arms Export Control Act with implementing regulations in the International Traffic in Arms Regulations (ITAR)—were promulgated to protect significant economic interests of the U.S. government and its defense-related technological superiority.
In some instances these regulations will require that universities and colleges obtain a special license to import or export specified items, services, or information. Since the regulations cover almost all fields of technology, science, and engineering, it is important that principal investigators are aware of export regulations that may apply. Violations of the regulations may result in significant penalties which can include criminal penalties and prison sentences for inpiduals.
Both the EAR and the ITAR provide that no licenses are required to disclose technical information if the information is in the public domain. Information is in the public domain if it is published and generally accessible to the public through unlimited and unrestricted distribution or through “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”. This fundamental research exclusion applies for basic and applied research in science as long as the research is carried out openly and without restrictions on publication or access to or dissemination of the research results (EAR 734.8; ITAR 120.11(8)). This fundamental research exclusion is also reiterated in NSDD-189 (National Policy on the Transfer of Scientific, Technical, and Engineering Information, September 21, 1985) as: “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, productions, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.”
This important exclusion to the licensing requirements can be lost easily due to inadvertent acceptance of contractually imposed restrictions on access to, dissemination of, or participation in research. Since it is our objective to maintain a high degree of academic freedom which provides general access to research projects and their results, it is our policy to not accept any publication or other related restriction in connection with any grants or contracts which may waive the “fundamental research” exclusion.
There may be circumstances where the Institute should consider research conducted under awards with certain types of publication restrictions (where the fundamental research exemption is removed). In these cases where a request by a sponsor would effectively eliminate our fundamental research exclusion, the Executive Director of Sponsored Research, in association with the Vice President for University Research and Enterprise Development and the appropriate Dean, will work with and provide advice to investigators as issues arise regarding EAR and ITAR requirements during the proposal stage. Principal investigators do not have authority to accept awards or submit proposals containing publication restrictions. In the event export control issues arise during the performance of an award, please contact the Executive Director of Sponsored Programs.