Export Control Laws

Export Control Laws and Regulations

There are three regulatory regimes that constitute export control laws:

• The International Traffic in Arms Regulations (ITAR) govern "defense articles and services" (items and information specifically designed or adapted for military use, such as satellites and spacecraft).  The list of controlled items is known as the US Munitions List (USML).  The State Department administers ITAR  and provides guidance on defense services and fundamental space science research.
• The Export Administration Regulations (EAR) govern dual use items and information predominately civilian in character but having military applications.  The US Department of Commerce (Bureau of Industry and Security) administers the EAR.
•  Embargo laws and regulations administered by the Office of Foreign Assets Control Regulations (OFAC) in the U.S. Department of the Treasury.  These laws and regulations affect commerce with a specified list of embargoed countries and with certain "specially designated nationals (SDNs).

The majority of research done at the University is safeguarded from export controls under the Fundamental Research Exclusion. However, this protection is lost whenever the University or the researcher agrees to allow any restrictions on the publication, dissemination, or access to the research by foreign nationals.

 The University has licensed software that can be used to:

• Search current Federal Export Control Regulations and Sanctions
• Determine categories of hardware subject to export controls
• Determine exemption, exception, exclusion or licensing requirements

For access to this software, research faculty may contact Jack Kraszewski, Director, Technology Transfer Office, (216) 687-5108.  Other University personnel may contact George Hamm, Associate General Counsel, (216) 687-3543.

Important Concepts and Terms

"Deemed Export":  The "export" of technology occurs in the U.S. when export-controlled technology is released to a Foreign Person (as defined below).  Export controlled technology is "released" for export either a) when it is made available to Foreign Persons for visual inspection (such as reading technical specifications, plans, blueprints, etc.); b) when technology is exchanged orally; and/or c) when technology is made available by practice or application under the guidance of persons with knowledge of the technology.

"Dual Use":  Dual use is the term used to describe items, information, and software that are primarily commercial or civil in nature but also have potential military applications.  Dual use items that are identified on the Export Administration Regulation's Commerce Control List (CCL) may require an export license depending on the item, the recipient, the recipient's citizenship or country of destination, and the item's application.

"Export":  To send or take controlled tangible items, software, or information out of the United States in any manner (including handcarried), to transfer ownership or control of controlled tangible items, software, or information to a foreign person, or to disclose information about controlled items, software, or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the United States is also referred to as an "export."

"Foreign Person":  Anyone who is not a "US Person" (as defined below).  Examples of foreign persons are students, post-doctoral scholars, or research staff in F-1 or J-1 status, and foreign national employees in H1-B status.  A foreign person also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the US.  Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments, such as consulates.

"Fundamental Research":  Basic and applied research in science and engineering where the resulting information is to be 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. Because export regulations expressly recognize that the conduct and informational products of fundamental research are excluded from deemed export controls, export licenses or other government approval is generally not needed before involving foreign persons in fundamental research activity. However, such research may give rise to export issues if 1) the primary research is to be conducted outside of the US; 2) requires foreign person access to US Munitions List items and technical data; or 3) requires foreign person access to disclosure-restricted technical information or software code generated by third parties such as defense contractors, commercial vendors or collaborators.

"US Person":  A citizen of United States, a lawful permanent resident alien of the US, (a Green Card holder), a refugee or someone here as a protected political asylee or under amnesty.   US persons also include organizations and entities, such as universities, incorporated in the US. The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.