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export control

Export Control

Frequently Asked Questions

Below is a list of frequently asked questions regarding Export Control. If you don't see your question, please contact Jerry Mauck for information.

What is an export?

Any item sent from the United States to a foreign destination is an export. "Items" include commodities, software or technology, such as clothing, building materials, circuit boards, automotive parts, blue prints, design plans, retail software packages and technical information.

How are exports transferred?

There can be physical exports which can be mailed, shipped, or even carried when traveling. Information transmitted out of the country by email or telephone are also considered transferred exports. Software uploaded to or downloaded from the Internet may even be an export. Even an item originally from a foreign country that is exported from the United States, transmitted through the United States or being returned from the United States to its country of origin is considered an export.

What is a deemed export?

A "deemed export" can occur when there is a release of technology or source code subject to the EAR or ITAR to a foreign national in the United States. It is "deemed" to be an export to the home country of the foreign national.

What is Fundamental Research Exclusion (FRE)?

Fundamental research means "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." The "exclusion" relates to the fact that a license is not needed to share these results, even if they relate to items or technology that are controlled. This exclusion allows U.S. universities to permit foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled information on campus in the U.S. without needing a license where information is controlled by EAR.  However, where such information is controlled by ITAR, the State Department has determined that foreign persons must be licensed or eligible for an exemption before information about controlled items or technology can be shared.

What is the difference between ITAR and EAR?

The Export Administration Regulations (EAR) are implemented by the U.S. Department of Commerce, and they regulate the export of goods and services identified on the Commerce Control List (CCL). Their primary purpose is to authorize the regulation of exports, to improve the efficiency of export regulation, and to minimize interference with the ability to engage in commerce.

The International Traffic in Arms Regulations (ITAR) classify the articles and services deemed to be defense articles and defense services and to control their export and import. These include the items and related technology and services (found on the Munitions List) that are specifically designed and developed for a military application and, which do not have predominant civil application, or are specifically designed and developed for a military application and have significant military or intelligence applicability.

What is OFAC and why is it important?

OFAC stands for the Office of Foreign Assets Control which is part of the U. S. Treasury Department. OFAC is the management arm of the U.S. Government with respect to the Specially Designated Nationals (SDNs), which are entities or individuals owned or controlled by, or acting for or on behalf of, the governments of target countries, or they are associated with international narcotics trafficking or terrorism. These individuals and entities are listed on both the SDN and Blocked Persons lists. Consequently, persons subject to the jurisdiction of the United States will know they are prohibited from interacting with those individuals and entities, and they must block all property within their possession or control in which the individuals and entities have interest.

If I'm traveling abroad what should concern me?

Researchers commonly carry laptops, cellphones, and tablets with them around the world. It is imperative to know that this means the laptop and/or cellphone and/or tablet is being exported. This is true not only when the laptop and/or cellphone and/or tablet is abroad, but also when they allow a person in a foreign country to use the laptop and/or cellphone and/or tablet or allow a foreign national access to the laptop and/or cellphone and/or tablet in the United States. Researchers should review the software and data they may be carrying to ensure that they are not taking any controlled software or technical information out of the country. The same applies to global positioning systems (GPS). The underlying software is covered by the EAR and, in some cases, the ITAR. Export regulations vary based on the country to which a researcher is traveling and the purpose for which he or she intends to use the device. However, a licensing exception may apply to the export of a laptop or GPS, which potentially would enable a researcher to take the equipment abroad without violating either the EAR or ITAR.

You must contact ORSP before using a license exception, as it is subject to record-keeping requirements. Find out more about license exceptions here.

Contact University Technology Services (UTS) to learn more about the clean laptop program.

What is the license exception for temporary export (TMP)?

Laptops, tablets, cellphones, and other digital storage devices are controlled items under the EAR.  However, the TMP License Exception describes that when those items are used for professional purposes, returned within 12 months, kept under control of the exporter while abroad, and other security precautions are taken against unauthorized release of technology (i.e., use of secure connections), then the TMP License Exception may apply.  The License Exception might not apply if items are shipped or carried to certain OFAC-sanctioned countries.  If you have any questions about the use of this TMP exception, please contact ORSP to confirm, as this exception requires that records be kept.

If I'm speaking to a foreign company or a foreign national, what should I be concerned about?

In general, the majority of exchanges between researchers off-campus can go forward without the requirement of an export license where the purpose of the meeting is to present research findings that have been published. However, this is only the case if they do not provide detailed information regarding defense articles found on the Munitions List, and international conferences are limited to published research which is covered by the "publicly available/public domain" exclusion provided by the regulations and no export license is needed when these discussions take place during participation in these conferences.

The U.S. Export Regulations (ITAR) only permits unlicensed export of technical information which falls within the meaning of the first categories above and is NOT ITAR-controlled.

However, technical information which is likely to be ITAR-controlled, and thus require an export license before sharing with a foreign national or foreign entity, includes detailed information about design, manufacture and test.

      a. General description of defense article systems
      b. Basic marketing information on function or purpose
      c. Information regarding general scientific, mathematics or engineering principles commonly taught in schools, and
      d. information in the public domain

What happens if we make a mistake and don't comply with the EAR or the ITAR?

Ignorance of the export control laws is no defense and non-compliance with the laws and regulations can result in significant penalties for both the University of Denver and the researcher(s) involved. In addition, federal agencies can take away exporting privileges from the University of Denver which could have very serious consequences on the University of Denver’s research. It is important to address any potential export control issues in advance, i.e., before there is any export of controlled equipment or technology. In the event that a violation occurs, ORSP and the General Counsel Office should be informed immediately as they are the parties within the University of Denver who have been designated to interface with federal agencies.

How do I determine if equipment or technical information I want to send out of the country is controlled?

If the item is controlled, it will be found on either the Commerce Control List or the Munitions List. Both lists are very complex and sometimes confusing and a researcher should never make this determination alone. A research must contact ORSP as soon as possible if they would like to make a determination, so that in the event a license is required, it can be solicited early enough so there is no delay in the research project. ORSP will work closely with the researcher to identify the correct determination.

Should I consider the encryption software on my technical device?

Depending on the country, it is possible there may be an export control concern. Since encryption products can be used for illegal purposes, the United States and several other countries regulate the import, export and use of encryption products. Taking your technical device with encryption software to certain countries without proper authorization could violate U.S. export law or the import regulations of the country to which you are traveling. Connect with ORSP to determine which software is permitted and what countries may be of concern. This information should be reviewed before traveling abroad.