Export controls are U.S. laws, rules and regulations that govern the transfer of controlled items, information or technology, to foreign nationals or foreign entities. Different governmental agencies are responsible for export control enforcement. The regulations and enforcing agency include:
The University of Colorado Denver|Anschutz office responsible for Export Control is the Office of Regulatory Compliance (ORC).
An export is the actual shipment or transmission of items, services or technical data subject to either the EAR or the ITAR out of the US, or the release of technology or software source code (EAR), or technical data (ITAR) to a non‐US person in the United States. Technology, software, or technical data is “released” for export through:
Visual inspection by a foreign national of US original equipment and facilities;
Oral exchanges of information in the US or abroad;
Transfer or shipment via any means (physical or electronic) to a foreign entity; or
Transfer of a service, or the application to situations abroad of personal knowledge or technical experience.
A deemed export is the release of information or technology subject to export control to any a foreign national in the U.S. Such a release of information is considered to be an export to the foreign nationals’ home country. The ITAR does not use the term “deemed export”, however, disclosing or transferring technical data subject to the ITAR to any non‐US party is considered to be an export whether it occurs in the US or abroad.
Dual use research is research conducted for legitimate purposes that generates knowledge, information, technologies and/or products that can be used for benevolent or harmful purposes. In other words, the item could have potential military application, as well as commercial or civilian uses.
A foreign national or foreign person is anyone who is not a U.S. citizen, is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status.
NOTE: Many researchers in our labs are foreign nationals. To determine eligibility for project participation, each foreign person may need to have a determination made by the Export Control office.
A foreign entity is any corporation, business, or other entity that is not incorporated to do business in the United States. This includes international organization, foreign governments, or any agency of a foreign government.
Export Control regulations prohibit foreign nationals from accessing export‐controlled technology or technical data without a license or existence of an exemption to the regulations. Part 6 of the I‐129 Form, the Petition for a Nonimmigrant Worker, codifies this by requiring a certification regarding the release of controlled technology or technical data to foreign persons in the U.S. In order to determine if export control regulated technology or data is being released, the planned activity of the petitioner must be reviewed. This review must happen even if the petitioner does not work with controlled technologies or data.
The certification applies to petitioners applying for the H‐1B1 Chile/Singapore, and O‐1A petitions. However, students are covered by U.S. export control regulations. If students have access to exportcontrolled technology or technical data, their activity must be covered by either an export license or by a determination of exemption. Contract the Export Control Officer: Christine.Ahearn@ucdenver.edu
First, it’s important to understand what is meant by fundamental research. Fundamental research is basic or applied research in science and engineering where the resulting information is ordinarily published and shared broadly in the scientific community; under such circumstances it is excluded from export controls. The Fundamental Research Exemption (FRE) provides a limited exclusion to export control requirements as long as the research meets the FRE requirement. See question below for additional information.
To keep the FRE, the following conditions must exist:
Publication. No publication restrictions may be accepted as part of the sponsored project award, either verbally or in writing.
Foreign Nationals. There may be no restrictions on who may participate in the sponsored research project.
Project Scope. The project must be either basic or applied research.
Basic research means work done primarily to acquire new knowledge with a particular application or use.
Applied research is research conducted in order to gain knowledge or understanding in order to meet a specific, recognized need.
Place of work. The work must be done at an accredited U.S. institution inside the United States
Yes. In addition to the Fundamental Research Exclusion, the Public Domain Exclusion and Educational Information Exclusions may apply to University activities.
The Public Domain Exclusion includes information that is published and that is generally accessible or available to the public through:
Sales at newsstands and bookstores
Subscriptions which are available without restriction to anyone who may want to purchase the published information
Second class mailing privileges granted by the U.S. Government
Libraries open to the public or from which the public can obtain documents
Patents available at any patent office
Unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the U.S.
Public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant U.S. Government agency or department; and
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.
The Education Exclusion governs information released in academic catalog listed courses, or teaching labs associated with the courses. In other words, a faculty member teaching a course at the University may discuss what would otherwise be export‐controlled technology in the classroom or laboratory without an export license, even if foreign national students are enrolled in the course. The exclusion stems from ITAR’s recognition 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 educational instruction exclusion does not apply to proprietary information, and certain information deemed classified or sensitive by the Federal government.
No, export controls apply to all international activities and are not limited to research activities. Contact the Export Control Officer in ORC for additional information.
Yes. International travel has export control concerns and a “license” may be required for specific activities. Countries which are sanctioned/embargoed may require the federally‐issued certification to proceed. Contact the Office of Export
Control for additional assistance. 303‐724‐0245 Christine.Ahearn@ucdenver.edu
Yes, export controls apply to all international activities and are not limited to research. In general, basic research conducted at the University of Colorado Denver is not subject to export controls under the Fundamental Research Exemption (FRE) as long as the research does not involve an export restricted area and there are no restrictions on publication or access by foreign nationals. However, in cases where the research involves collaborations with foreign nationals, the university must perform a review of the research and determine if the Fundamental Research Exemption applies.
The Office of Regulatory Compliance has oversight for export control activity at the University of Colorado Denver|Anschutz Medical Campus. ORC works closed with other institutional offices, the Office of Grants and Contracts, Environmental Health and Safety, the Office of International Affairs, among others, to ensure identification and review of export control matters. Contact Export Control Officer Christine.Ahearn@ucdenver.edu for assistance.