Exemptions & Exclusions
Export control laws and regulations broadly cover all university activities, but some exemptions and/or exclusions do apply. Under certain circumstances, export control laws and regulations will be inapplicable to or a license will not be required for the transfer of items or information. In fact, much of UAB's work will fall into one or more of the exempt/excluded categories. However, UAB must demonstrate and document that the appropriate export control reviews were performed in order to claim an exemption.
Public Domain/Publicly Available
Export control laws and regulations do not apply to items or information that are published and generally available to the public. This may be through sales at bookstands or stores, subscriptions available without restrictions, libraries open or available to the public, patents, or unlimited distribution at a conference, meeting, seminar, or trade show that is generally accessible to the public in the U.S. This includes technology and software that are educational and released by instruction in catalog courses and associated labs and universities. Examples of information in the public domain include books, newspapers, pamphlets, publicly available technology and software, and websites freely accessible to the public.
Fundamental Research Exclusion
An export license is not required for basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. (Note: EAR and ITAR do allow for delay of publication for a pending patent application.) However, this exclusion can be lost if:
- UAB accepts restrictions on the publication of the results of the project. This pertains to many industry contracts and testing agreements.
- There is a "side deal." This could take place via a non-disclosure agreement or acceptance of export-controlled information.
- Sponsor approval (not just review) is required prior to publication.
- A government contract involves an ITAR project with access and dissemination of information controls.
- There is a transfer of defense services. In addition, there are potential license requirements for work with foreign nationals.
As with items or information in the public domain and fundamental research, export control laws and regulations do not apply to the transfer of items of information that occurs in the regular course of instruction or education in catalog courses and associated labs and universities. This includes technology and software that are educational.
Disclosures to Bona-fide Full Time Employees (ITAR exemption only)
Particular to ITAR, the regulations allow a university to disclose unclassified technical data in the U.S. to a foreign person who is the university's bona fide and full time regular employee. The exemption is available only if:
- the employee's permanent abode throughout the period of employment is in the United States;
- the employee is not a national of a country to which exports are prohibited pursuant to ITAR § 126.1 (See current list of countries at http://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_126.pdf);
- the university informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of U.S. Department of State Directorate of Defense Trade Controls; and
- the university documents the disclosure of technical data under the exemption providing: (1) a description of the technical data; (2) the name of the recipient / end-user; (3) the date and time of export; (4) the method of transmission (e.g., e-mail, fax, FedEx); (5) the ITAR reference, i.e., ITAR § 125.4(b)(10), Full-Time University Employee.
Note that the "full-time bona fide employee" requirement will preclude foreign students and postdoctoral researchers from qualifying for access to technical data under this exemption. Generally, a H1B work visa would be required.