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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.
Export control regulations are federal laws that prohibit the unlicensed export of certain commodities or information for reasons of national security or protection 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 (a.k.a. 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 (a.k.a. U.S. Munitions List) cover defense-related items and services.
- The Treasury Department's Office of Foreign Assets Control administers and enforces economic and trade sanctions that have been imposed against specific countries for reasons of foreign policy, national security, or international agreements.
- National Security
- Nonproliferation of Chemical and Biological Weapons
- Nuclear Nonproliferation
- Control Access to Missile Technology
- Crime Control
- Limit Access to High-Performance Computing
- Regional Stability
- Short Supply
- U.N. Sanctions
Export control regulations prohibit unlicensed export of specific technologies for reasons of national security or trade protection. If CWRU research involves such technologies, the university may be required to obtain prior approval from the departments of State, Commerce, or Treasury before
allowing foreign nationals to participate in the research,
partnering with a foreign company,
- 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. That’s 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. And, as such, 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, based on government access and dissemination controls. Under Export Administration Regulations (EAR), university research is typically fundamental unless the university or its researchers accept sponsor restrictions on publication of the research results. Note, however, that the EAR permits limit prepublication reviews by sponsors. That prevents divulging sponsor proprietary information or allows the sponsor time to protect its patent rights.
"Foreign National" includes individuals in the United States on student visas or H1 visas, including foreign visiting faculty. Other "Foreign Nationals" are people are not a:
U.S. Citizen or National,
U.S. Lawful Permanent Resident,
Person Granted Asylum,
Person Granted Refugee Status,
- Lawfully-admitted Temporary Resident.
In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release, or disclosure of technical data about controlled commodities to foreign persons in the United States. The “deemed export” regulation states that transfer of source code or technology or technical data to a 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.
The consequences of violating export control regulations can be severe, ranging from loss of research contracts to fines to jail time. Both the university and the individual can be subject to criminal and civil penalties. As a result, reasonable measures are required to prevent disclosure to, and the use and access of export controlled technical data or technology by unauthorized, unlicensed foreign persons. What qualifies as reasonable depends on the circumstances.
For willful violations of the Export Administration Regulations (EAR), criminal sanctions to CWRU may include fines up to the greater of $1 million or five times the value of the export. Criminal sanctions to an individual for each willful violation of the EAR can include a fine of up to $250,000 or imprisonment for up to 10 years, or both. CWRU and individual faculty, staff and researchers can also lose their privilege to export and may be barred from contracting with the federal government.
For each violation of the International Traffic in Arms Regulations (ITAR), CWRU can be subject to a criminal fine of up to $1 million. The same applies to Individual criminal liability and may include up to 20 years imprisonment per violation, or both. Other sanctions may be imposed as well.