The term “Export Controls” refers collectively to the body of U.S. laws and regulations that govern the transfer of controlled items or information to foreign nationals or foreign entities.
An export occurs whenever any item (i.e., any commodity, software, technology, or equipment) is sent from the U.S. to a foreign destination, as well as when any sensitive or controlled information is released to a foreign national, whether in the United States or abroad. The manner in which the transfer or release of the item or information occurs is not dispositive. Some examples of export activities include: the shipment of items, written or oral communications, hand-carrying items when traveling, providing access to or visual inspection of equipment or facilities, and providing professional services.
A deemed export refers to the release or transmission of information or technology to any foreign national in the United States, including students, post-docs, faculty, visiting scientists, and training fellows. A deemed export is conceptually treated by the U.S. government as an export to the country of most recent citizenship or permanent residence. Deemed exports are a primary area of export control exposure for the university.
A foreign national is defined as any natural person who is not a U.S. citizen, or 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 in the United States.
A foreign entity is any corporation, business, or other entity that is not incorporated in the United States. This includes international organizations, foreign governments, or any agency of a foreign government.
A dual use item is any item that can potentially have a military application as well as a commercial or civilian purpose (e.g., GPS units).
ITAR stands for the International Traffic in Arms Regulations (22 CFR §§120-130), which are administered by the Directorate of Defense Trade Controls under the U.S. Department of State. The ITAR governs "defense articles" which are item of a specific military purpose, as well as certain "defense services", all of which are indicated by the U.S. Munitions List (USML).
EAR stands for the Export Administration Regulations (15 CFR §§730-774), which are administered by the U.S. Department of Commerce's Bureau of Industry and Security (BIS). The EAR govern the export of most items in the United States, with a focus on certain dual use items identified on the Commerce Control List (CCL).
The EAR applies to all items (commodities, software, or technology) that are of U.S. origin; or are made with U.S. materials, technology, or know-how; or become physically located in the U.S. AND not otherwise under the exclusive jurisdiction of another regulatory jurisdiction (e.g., ITAR, Nuclear Regulatory Commission).
OFAC stands for the Office of Foreign Assets Control (31 CFR §§500-599) and is part of the U.S. Department of the Treasury. OFAC is responsible for creating and enforcing certain aspects of foreign economic policy of the U.S. government, including trade sanctions, embargoes, and financial interactions with prohibited or blocked individuals or entities. For more information, see a listing of OFAC Country Sanction programs.
Fundamental Research is generally understood to be "basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community.” In order to qualify as Fundamental Research, the researchers must be free to publish the results and there must be no national security or proprietary restrictions on who can participate in the research. It is critical to note that the Fundamental Research Exclusion will be lost if a researcher agrees to any “side-deals” allowing sponsors the ability to review and approve publications or to control access to the project or project results. Loss of the Fundamental Research Exclusion can quickly put your research in jeopardy of non-compliance with export controls.
Information that is normally taught or released by the university as part of regular course offerings, or provided in connection to an associated teaching laboratory is considered Educational Information and is NOT subject to export controls.
Information that is already published or is publicly available is considered public information and is no longer subject to export controls. Examples of information in the public domain include:
- Books, newspapers, pamphlets
- Publically available technology and software
- Information presented at conferences, meetings, and seminars open to the public
- Information included in published patents
- Websites freely accessible by the public
A “yes” answer to any of the following questions indicates that your research might be subject to export controls and should be reviewed by the Office of Export Controls:
- Research involves export restricted science and engineering areas including defense articles or services, missiles, chemical & biological weapons, nuclear technology, work with designated select agents, high performance computing, and encryption technology.
- Research involves the use of export controlled information, items, or technology (e.g., export restricted information or technology received from outside the university).
- Research involves the transfer of project information, equipment, materials, or financial support out of the U.S. (e.g., sending project deliverables or providing funding via a subcontract)
- Any part of the research will take place outside the U.S. or will include international travel (e.g., field work outside the U.S., attending an international conference to present results, or providing professional services)
- Research involves foreign national faculty, visiting scientists or collaborator(s), or other foreign entities (e.g., non-U.S. company, university, or other organization).
- Foreign national graduate students, trainees, or other university employees will be involved in the research and the research has not yet been determined to be Fundamental Research.
“ECCN” stands for Export Control Classification Number and is an alpha-numeric code used to categorize items on the Commerce Control List (CCL). The ECCN will provide information as to what level of restrictions apply for export of the item.
EAR99 is the general “catch-all” classification number assigned to any item that is subject to the EAR but that does not have a specific ECCN. The vast majority of U.S. origin goods are classified as EAR99, and under most circumstances, do not require a license for export.
An Export License is a written authorization provided by the federal government granting permission for the release or transfer of export controlled information or item under a defined set of conditions.
The following are examples of the types of university activities that may trigger the need for an export license (including for deemed export activities):
Determining when you need an export license can be very complicated. The Office of Export Controls will assist you in determining if a license is required and/or if there is a valid license exception or other exclusion that may apply.
An export license exception is a special authorization that allows you to transfer items or share information, under very specific conditions, that would otherwise require an export license. The use of a license exception must be properly documented and approved by the Office of Export Controls prior to engaging in the subject activity.
If it is determined that your activity requires an export license, the Office of Export Controls will coordinate the license application process. We will work with you to draft and submit a license request to the appropriate regulatory body. It is important to note that obtaining an export license can take 3-6 months and there is no guarantee that a license will be granted.
No. There is no significant insight about an item's status as export controlled that can be determined simply through commercial availability. However, for the purposes of deemed exports, an off-the-shelf commercially available item will not likely trigger a violation of the export controls regimes if used by a foreign national in the United States.
A Technology Control Plan (TCP) is a document created by the Office of Export Controls specifying procedures to safeguard and control access to information or items that are export controlled. In general, a TCP will outline what the restricted information/item is, who will have access to it, how access will be monitored and controlled, how the information/item will be physically and electronically stored, what information about it can be shared or presented, and what will be done with the information/item once the project is completed.
Research conducted at CU Boulder that uses data or items that are obtained from an outside entity and are restricted in access or dissemination--including, but not limited to export control restrictions--is subject to export controls. Before the data or item is received by the researcher, the Office of Export Controls should be consulted, and the receipt and handling of the data or items must be documented. In some cases, a formal Technology Control Plan will be required.
Research Setting FAQs
Yes, export controls apply to all international activities regardless of funding status or source.
Yes, export controls apply to all research activities with a connection to a foriegn person or country. There are, however, many exceptions to these laws that allow basic research and other activities to proceed without a license. In cases where CU Boulder research involves collaborations with foreign nationals, the Office of Export Controls will perform a review of the research and the individuals involved, and provide either approval to continue without mitigation, or create a mitigation plan to address any identified risks.
Maybe. To qualify as Fundamental Research, research must be conducted at an accredited institution of higher education located in the United States. If your research includes work done outside the U.S., some of your work may not qualify for the Fundamental Research Exclusion. This does not automatically mean that export licenses will be required, but it does mean that an export control determination needs to be done before the work begins.
It depends. While research results that have been determined to be covered by the Fundamental Research Exclusion are not subject to export controls, any materials, items, technology, or software used or generated during the course of the research are not necessarily exempt. Before shipping or taking any item abroad, an export control determination needs to be done to determine if an export license is required to take or transfer the item. Contact firstname.lastname@example.org for help in determining your license requirements.
Yes, export controls apply to all U.S. persons, at all times. It is important that you understand and comply with your obligations. If you are consulting in a restricted technology area (e.g., on dual-use technologies or select agent work), then you may need an export license depending on where you are going, what information you are providing, who you are providing it to, and what they intend to do with it. If the destination or end-user is a foreign national of a sanctioned country (especially Iran, Syria, Cuba, North Korea, Russia and Russian-occupied Ukraine), it is likely that the consulting activities would be prohibited by U.S. law regardless of the subject matter.
This is likely a permitted activity under the current regulations, Federal Register vol. 72, 50047-50052 (see section 560.538). It is still recommended that you conduct a restricted party screen (or have the Office of Export Controls assist) to ensure that the Iranian author is not a governmental official or working on behalf of the government of Iran. Academic and research institutions in Iran and their personnel are not considered governmental employees or representatives for the purposes of the regulations.