MSU has an export compliance program in the Office of Research Compliance & Security (ORC&S) which is designed to comply with U.S. Government regulations on export controls. ORC&S has an Export Compliance Manual which outlines how MSU complies with these regulations. The U.S. Government puts regulations on export controls for reasons of national security, foreign policy, the non-proliferation of weapons of mass destruction, and for competitive trade. Also regulated under the export control statute, “deemed export”, is the transfer or release of controlled information within the U.S. to personnel who are not "U.S. persons." A "U.S. person" is defined as someone who is either: 1) a U.S. Citizen, 2) a U.S. legal permanent resident, or 3) a person who has been granted protected status, such as a political refugee or a political asylum holder.
Examples of activities that may implicate export control laws and regulations and therefore require close review by the Export Control Officer (ECO) prior to commencement include, but are not limited to, the following:
- Engaging in research in controlled areas;
- Engaging in research where publication or participation by foreign nationals is restricted by the sponsor;
- Receiving and/or using export-controlled information or technologies obtained from other parties;
- Shipping or taking equipment, technology, or software overseas (promotional items or documents that do not contain controlled or sensitive information are not required to be reviewed);
- Traveling or working outside the United States;
- Collaborating with foreign nationals on research projects, education program, and other services, whether within the U.S. or abroad;
- Preparing or presenting information at venues abroad or at venues within the U.S. where foreign nationals are present;
- Participating in international exchange programs;
- Employing foreign nationals to work in university offices and laboratories;
- Hosting foreign visitors; and
- Training foreign nationals
There are two main regulations, International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), and one secondary export control regulation, sanctions, which govern scientific research carried out by universities.
In terms of classifying technology as either ITAR or EAR, there are three different ways to do so:
- Reach out to the manufacturer of the item and ask them to provide the export control classification number (ECCN) of the item
- If that option is unavailable or does not work, the university can self-classify, either within their department or the Export Control Officer can work with the researcher who will be using the item, using the researcher’s technical expertise as a guidance mechanism
- If the first two steps do not solve the question, the Export Control Officer can reach out to the United States Government and request a classification
One regulation is the Commerce Control List (CCL) under the Export Administration Regulations (EAR), which is administered by the Bureau of Industry & Security (BIS) within the Department of Commerce. The EAR regulates export and export restrictions: whether a person may export something from the U.S.; re-export something from a foreign country; or transfer something from one person to another in a foreign country. The EAR apply to physical objects - sometimes referred to as "commodities" - as well as intellectual property such as technology and software. The CCL is a limited list of items within the scope of the EAR which merit particular attention because they could potentially have a military use in addition to a commercial use. CCL-listed items are therefore often referred to as "dual use." The CCL, however, is not an exhaustive list of things that are within the scope of the EAR; to the contrary, the overwhelming majority of things that fall within the scope of the EAR are not listed on the CCL; instead, they are given the designation "EAR99”. Items that are listed on the CCL are organized according to alpha-numeric designations called "Export Control Classification Numbers" (ECCNs). EECNs are 5 digits. The first digit (a number) corresponds to the item’s category, the second digit (a letter) refers to the item’s product group, and the last three digits (numbers) indicate the reasoning for control on that particular item.
The categories which determine an item’s EECN are down below.
- The CCL has nine main categories (0 is not a common category):
- 0: Nuclear Materials, Facilities, and Equipment (and other miscellaneous items)
- 1: Materials, Chemical, Microorganisms, and Toxins
- 2: Materials Processing
- 3: Electronics
- 4: Computers
- 5- Part 1: Telecommunications, Part 2: Information Security
- 6: Sensors and Lasers
- 7: Navigation and Avionics
- 8: Marine
- 9: Aerospace and Propulsion
- The CCL also has five subcategories called product groups:
- A: End Items, Equipment, Accessories, Attachments, Parts, Components, and Systems
- B: Test, Inspection and Production Equipment
- C: Materials
- D: Software
- E: Technology
However, not every item falls neatly in the USML or CCL. There are many items which can fall into EAR99, which is essentially a catch-all for items that are not controlled by the USML or CCL but still fall under the EAR. This category typically includes low-tech consumer products and services. Even though such goods may not require a license, the authorities must ensure that an EAR99 product isn't exported to an embargoed country, shipped to a prohibited user, or used for illegal purposes. These products fall under the supervision of the US Department of Commerce.
They can usually be exported to other countries without any hassles, provided that their end-use is not prohibited. If the proposed export of the product is to a country that the US has banned, then the exporter might be required to obtain a license. Since EAR99 products aren't listed in the CCL, they aren't assigned an ECCN. The two main benefits for universities to use EAR99 is the no license requirement (NLR) as well as fewer regulations.
Another regulation is the United States Munitions List (USML) under the International Traffic in Arms Regulations (ITAR) which is administered by the Directorate of Defense Trade Controls (DDTC) within the Department of State. ITAR is a United States regulation that controls the export and import of defense articles and services on the USML. ITAR applies to the actual products on the USML, defense services, and the plans or documentation used to build or support them (“technical data”). Examples of technical data include part drawings, photos, software, and other classified information related to the defense articles or services. The purpose of ITAR is to prevent military and defense-related items and information from falling into the wrong hands and to protect against national security threats. ITAR states that only U.S. citizens and U.S. Green Card holders (“U.S. persons” as defined by ITAR) can access items on the USML, and that no foreign persons may access them, unless otherwise authorized.
The USML has 21 categories:
- I. Firearms, Close Assault Weapons and Combat Shotguns
- II. Guns and Armament
- III. Ammunition/Ordnance
- IV. Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Landmines
- V. Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents
- VI. Surface Vessels of War and Special Naval Equipment
- VII. Ground Vehicles
- VIII. Aircraft and Related Articles
- IX. Military Training Equipment and Training
- X. Personal Protective Equipment
- XI. Military Electronics
- XII. Fire Control, Range Finder, Optical and Guidance and Control Equipment, Night vision goggles
- XIII. Materials and Miscellaneous Articles
- XIV. Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
- XV. Spacecraft and Related Articles
- XVI. Nuclear Weapon-Related Articles
- XVII. Classified Articles, Technical Data, and Defense Services Not Otherwise Enumerated
- XVIII. Directed Energy Weapons
- XIX. Gas Turbine Engines and Associated Equipment
- XX. Submersible Vessels and Related Articles
- XXI. Articles, Technical Data, and Defense Services Not Otherwise Enumerated
The secondary regulation is the Office of Foreign Assets Control (OFAC), which is an office that operates under the Department of Treasury. OFAC enforces trade embargoes, sanctions, and financial transaction prohibitions against targeted foreign governments, entities, individuals, and certain practices in support of United States’ national security and foreign policy objectives.
OFAC publishes lists of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. The country specific sanctions can be found at: https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information. The non-country specific sanctions are collectively known as the “Specially Designated Nationals and Blocked Persons List (SDN) List”. This List can be found at: https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists.