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export control

Export Control

Export Control Basics

Export control laws apply to all activities – not just sponsored research projects. Those activities include: 

  • International Travel
  • Work with Foreign Nationals
  • Work with Foreign Countries
  • Publication Restrictions
  • Human Resources
  • International Students
  • Purchasing from Foreign Countries or Entities
  • University Advancement

Find out more about export control basics by expanding each of the topics below.

What Is An Export?

Any item that is sent from the United States to a foreign destination is an export. "Items" include commodities, software or technology, such as, blue prints, design plans, retail software packages and technical information. How an item is transported outside of the United States does not matter in determining export license requirements. License requirements are dependent upon an item's technical characteristics, the destination, the end-user, and the end-use. You, as the exporter, must determine whether your export requires a license. When making that determination consider: What are you exporting? Where are you exporting? Who will receive your item? What will your item be used for?

What are Export Control Laws?

Export Control laws are U.S. laws that regulate the distribution of important items to foreign nationals and foreign countries for reasons foreign policy and national security reasons. 

These laws pose challenges to higher education institutions because a balance is needed between national security and academic freedom.  These laws may apply to the University of Denver researchers. The Department of Commerce's Export Administration Regulations (EAR) and the Department of State's International Traffic in Arms Regulations (ITAR) restrict the export of certain technology or technical data. In certain circumstances, these agencies may require the University to secure a license before the item or information is exported to another country or shared with a foreign national. It is the responsibility of faculty and administrators to be aware of and comply with these laws and the University’s written instructions and procedures.

How Can This  Affect My Research?

There are several scenarios that may require an export license including, but not limited to:

  • A physical transfer/disclosure of an item outside the U.S.
  • Any transfer/disclosure of a controlled item or information within the U.S. to a foreign national
  • Presentation/discussion of previously unpublished research at conferences or meetings where foreign national scholars may be in attendance
  • Transfers of research equipment abroad
  • Visits to your lab by foreign national scholars
  • Research in the following areas can frequently require export control:
    • Engineering and Computer Science
    • Physics and Astronomy
    • Biology and Chemistry
    • In addition, any of the following will raise export control questions for your project:
      • Sponsor restrictions on the participation of foreign nationals in the research
      • Sponsor restrictions on the publication or disclosure of research results
What Are You Exporting?

A key in determining whether an export license is needed from the Department of Commerce is knowing whether the item you are intending to export has a specific Export Control Classification Number (ECCN). The ECCN is an alpha-numeric code, e.g., 3A001, that describes a particular item or type of item, and shows the controls placed on that item.

A key resource to use to determine if export controls are applicable to your project is the Stanford University “Export Controls Decision Tree”.

Where Are You Exporting?

Restrictions vary from country to country. The most restricted destinations are the embargoed countries and those countries designated as supporting terrorist activities. There are restrictions on some products, however, that are worldwide.

Deemed Export

In any academic research setting, there is a high likelihood that foreign students and researchers will be participating in research, which increases the possibility of an export control issue arising from  Deemed Exports.

WHAT IS A DEEMED EXPORT?

A deemed export is the transfer of a controlled technology to foreign persons, usually in the United States, where the transfer falls under the export control regulations because the transfer is "deemed" to be to the country where the person is a resident or a citizen. Examples of how such technology may be released for export are:

  • Participation of foreign national faculty, staff, or students in affected research
  • Conversations with foreign persons (face to face, by telephone, or by email)
  • Collaboration through research or day to day working with foreign persons/interns/consultants
  • The application to situations abroad of personal knowledge or technical experience acquired in the United States
  • Access to shared network drive that contains controlled technologies

For example, transfer of infrared camera technology to a Chinese national in the United States may require a license as if the transfer of the technology was made to the Chinese national in China. The transfer is thus "deemed" to be to China even though all activities take place in the United States.

In recent years, there is increasing concern in both industry and academia that unintentional violations of United States export control laws may occur as the distinction between military and civilian technology has become blurred, and as industry and academia have become highly globalized and routinely involve foreign nationals. And under recent interpretations of the ITAR with respect to deemed exports, the fundamental research exclusion does not necessarily cover ITAR-controlled technology or technical information or data. Where any aspects of a research project involve equipment, technology or technical information that may be on the Munitions List, it is imperative that the researcher contact ORSP to review the project for any potential export control issues.

Fundamental Research Exclusion (FRE)

Fundamental Research is defined 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, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.”

Essentially, research results within the definition of fundamental research are excluded from export control laws and regulations. A license is not needed to share these results, even if they are related to items or technology that is otherwise controlled.

This exclusion permits U.S. universities to allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects which involve export-controlled information on campus in the U.S. without needing a license, where information is otherwise controlled by EAR. However, where information is controlled under ITAR, the State Department has taken the position that foreign persons must be licensed or eligible for an exemption before information about controlled items or technology can be shared. Also, anything marked as classified supersedes this, though our exposure to this is minimal.

When there is a research project involving equipment or information controlled under ITAR, it is necessary that ORSP conduct a review of the information to be shared in order to determine whether an exemption may exist or whether a license may be required. In no circumstance does the fundamental research exclusion permit the transfer of export-controlled information, materials, or items abroad, even to research collaborators, except under limited circumstances.

Due to the fundamental research exclusion, the University of Denver is allowed to conduct the majority of research activities which fall under the definition of fundamental research without the parameters of export control laws and without needing an export license. Research performed on University premises normally will be considered as fundamental research unless the University or its researchers accept sponsor restrictions on publication of scientific and technical information resulting from the project or activity.

When is it likely an export license is required?

Click here to view a chart to help determine when an export license is required. 

Our Responsibility

Laws and regulations pertaining research include not only its conduct but its dissemination. Specifically, export control laws not only cover tangible items such as transfers of equipment or materials but they also impact our mission in education and research. Contact ORSP if you have any questions or concerns.