Frequently Asked Questions About Export Control

 

What are export control regulations?  
Export control regulations are federal laws that prohibit the unlicensed export of certain commodities or information for reasons of national security or protections of trade.  Export controls usually arise for one or more of the following reasons:

  • the export has actual or potential military applications or economic protection issues; or
  • the federal government has concerns about the destination country, organization, or individual; or
  • the federal government has concerns about the declared or suspected end-use or end-user of the export.

Most CWRU exports do not require government licenses.  However, licenses are required for exports that the U. S. government considers "license controlled" under the following authorities:

  • The Department of Commerce's Export Administration Regulations (EAR) (also known as the Commerce Control List) cover “dual-use” items, such as computers or pathogens, that are designed for commercial use but have the potential for military application.
  • The Department of State's International Traffic in Arms Regulations (ITAR) (also known as the U.S. Munitions List) cover defense-related items and services.
  • The Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries for reasons of foreign policy, national security, or international agreements.  

 

Why are certain exports controlled? 

  • National Security
  • Nonproliferation of Chemical and Biological Weapons
  • Nuclear Nonproliferation
  • Control Access to Missile Technology
  • Anti-Terrorism
  • Crime Control
  • Limit Access to High Performance Computing
  • Regional Stability
  • Short Supply
  • U.N. Sanctions

What is an export? 

An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to

  • anyone outside the U.S., including a U.S. citizen
  • a non-U.S. individual, wherever they are (deemed export)
  • a foreign embassy or affiliate

“Deemed export” is the term used by the Commerce Department to describe the situation where a foreign national who is physically within the United States may be exposed to, or have access to, an export-controlled item or export-controlled software or information. Although the State Department does not use this term, it includes the concept in its definition of export. The disclosure or transfer of information in such a situation is "deemed" to be an export to the home country of the foreign individual or entity.

How do the regulations affect research projects? 
Export control regulations prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade.  If CWRU research involves such specified technologies, CWRU may be required to obtain prior approval from the Departments of State, Commerce, or Treasury before allowing foreign nationals to participate in CWRU research, partnering with a foreign company, or sharing research information—verbally or in writing—with people who are not U.S. citizens or permanent residents.

Many research activities at universities are exempted from export control licensing requirements because the activities are “fundamental research”. This means it is basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is different from research that results in information that is restricted for proprietary or national security reasons  or pursuant to U.S. government access and dissemination controls. Under the EAR, university research typically will be considered fundamental research unless the university or its researchers accept sponsor restrictions on publication of the research results from the project. Note, however, that the EAR permits limited prepublication reviews by sponsors to prevent divulging of sponsor proprietary information or to allow the sponsor time to protect its patent rights.

Who is considered a foreign national? 
A "Foreign National" is any person who is not a:

  • U.S. Citizen or National
  • U.S. Lawful Permanent Resident
  • Person Granted Asylum
  • Person Granted Refugee Status
  • Lawfully-admitted Temporary Resident

"Foreign National" includes individuals in the U.S. on student visas or H1 visas (including foreign visiting faculty).

How are foreign students affected by export control regulations? 
In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release, or disclosure to foreign persons in the U.S. of technical data about controlled commodities.  The “deemed export” regulation states that a transfer of a source code or “technology” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person. 

Teaching faculty, research supervisors, and principal investigators who educate or supervise foreign national students, postdoctoral fellows, and staff must convey to them only that information or technology which qualifies as “fundamental research” and/or is in the public domain.  Where interactions with foreign nationals in the United States could involve verbal, written, electronic, and/or visual disclosures of controlled scientific and technical information, an export control license may be required. 

What are the penalties for unlawful export? 
The consequences of violating export control regulations can be severe, ranging from loss of research contracts to monetary penalties to jail time.  Both the university and the individual can be subject to criminal and civil penalties.

As a result, you must take reasonable measures to prevent the disclosure to and use and access of export controlled technical data or technology by unauthorized, unlicensed foreign persons. What qualifies as reasonable depends on the circumstances.

For violations of the EAR, criminal sanctions to CWRU may include fines up to the greater of $1 million or 5 times the value of the exports for each willful violation. Criminal sanctions to an individual for willful violations of the EAR can include a fine of up to $250,000 or imprisonment for up to 10 years, or both, for each violation.  CWRU and individual faculty, staff and researchers can also lose their privilege to export and may be debarred from contracting with the federal government.

For violations of the ITAR, CWRU can be subject to a criminal fine of up to $1,000,000 for each violation. Individual criminal liability for the disclosure of controlled technical data or technology to unauthorized foreign persons under the ITAR can reach up to $1 million per violation and 20 years imprisonment per violation, or both. Other sanctions may be imposed as well. 

What is the Foreign Corrupt Practices Act? 
The Foreign Corrupt Practices Act (FCPA) is a federal law making it unlawful to make payments, or give items of value, to foreign government officials to influence the official to do (or omit doing) something for one’s benefit or unfair advantage. Violations may result in criminal, civil, and regulatory penalties for both institution and its individuals involved in the wrongdoing. For more information, visit the web page of the U.S. Department of Justice.

Who can help me get answers to export control questions regarding my specific situation? 
To help you determine whether your project may require a license, please call the Director of Export Control and Privacy Management, 368-5791.

Case Western Reserve University

Questions?

Contact 216.368.5791, exportcontrol@case.edu; or call the Integrity Hotline at 1.866.483.9367 for anonymous reporting.

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