Where Industry and Security Intersect
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As required by Section 6(n) of the Export Administration Act of 1979, as amended, the United States controls the exports of crime control and detection items because of human rights concerns in various countries of the world. The U.S. Government requires a license to export most crime control and detection instruments, equipment, related technology, and software to all destinations, except Australia, Japan, New Zealand, and members of the North Atlantic Treaty Organization (NATO). A license is required to export certain crime control items, including restraint type devices (such as handcuffs) and discharge type arms (such as tasers) to all destinations except Canada. Specially designed implements of torture and thumbscrews, which are part of the crime control category, require a license for export to all destinations. In addition, the U.S. Government maintains concurrent export license requirements for certain crime control items in furtherance of the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials.
The U.S. Government has a general policy of denial for license applications to export crime control items to a country in which the government engages in a consistent pattern of gross violations of internationally recognized human rights. For other countries, the U.S. Government will consider applications for crime control items favorably, on a case-by-case basis, unless there is civil disorder in the country or region of concern, or there is evidence that the government may have violated human rights and that the judicious use of export controls would be helpful in minimizing regional instability, deterring the development of a consistent pattern of such violations, or in demonstrating U.S. opposition to such violations.
The U.S. Government has a policy of denial for any license application to export specially designed implements of torture and thumbscrews. No applications for the export of these items were submitted in 2004.
Following the 1989 military assault on demonstrators by the People’s Republic of China (PRC) in Tiananmen Square, the U.S. Government imposed constraints on the export to the PRC of certain items on the Commerce Control List (CCL). Section 902(a)(4) of the Foreign Relations Authorization Act for FY 1990-1991, Public Law 101-246, suspends the issuance of licenses under Section 6(n) of the Act for the export of any crime control or detection instruments or equipment to the PRC. The President may terminate the suspension by reporting to Congress that China has made progress on political reform or that it is in the national interest of the United States to terminate the suspension. The President has not exercised his authority to terminate this suspension.
The U.S. Government denies applications to export certain crime control items to Indonesia, subject to narrow exceptions, consistent with Section 582 of the Foreign Operations, Export Financing and Related Programs 1995 Appropriations and 1994 Supplemental Appropriations Act (Public Law 103-306). This restriction could be lifted if the Secretary of State determines and reports to Congress that there has been significant progress made on human rights in East Timor and elsewhere in Indonesia.
The U.S. Government maintains an embargo on the sale or supply of arms and related materiel to certain entities in Rwanda, consistent with United Nations Security Council Resolution 918 and the United Nations Participation Act. As a result, applications to export items controlled for crime control and detection reasons on the CCL to such entities are subject to a general policy of denial.
On November 15, 2004, the United Nations Security Council voted unanimously to impose an embargo on the export of arms and related material, as well as defense services, to the West African nation of Ivory Coast (known formally as Côte d'Ivoire). The embargo will remain in effect for a period of 13 months unless otherwise amended. The Department of State issued guidance on its Web site advising U.S. exporters that, effective November 16, 2004, no application for the export to Ivory Coast of defense articles or services covered by the International Traffic in Arms Regulations (ITAR) will be approved. The Department of Commerce already requires a license to export items controlled on the Commerce Control List for crime control or regional stability reasons to Ivory Coast, under a licensing policy requiring case-by-case review. The Department expects to implement the arms embargo against Ivory Coast in the near term through an amended regulation to be published shortly in the Federal Register.
Certain crime control and detection instruments, equipment, related technology, and software may be exported to Australia, Japan, New Zealand, and members of the North Atlantic Treaty Organization (NATO) without a specific license, consistent with Section 6(n) of the Export Administration Act. On June 28, 2004, the Department of Commerce published an amendment to the EAR to reflect Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia, and Slovenia joining NATO. The Department no longer requires a license for most crime control items proposed for export or reexport to these seven countries.
In April 1999, the Department of Commerce published a rule implementing the provisions of the Organization of American States (OAS) Model Regulations for the Control of the International Movement of Firearms. The Department designed these regulations to harmonize import and export controls on the legal international movement of firearms among OAS member states and to establish procedures to prevent the illegal trafficking of firearms among these countries.
Under these provisions, the Department maintains foreign policy controls on exports of Commerce-controlled firearms, including shotguns with a barrel length of 18 inches or over and parts, buckshot shells, shotgun shells and parts, and optical sighting devices to all OAS member countries, including Canada. Items subject to these controls are identified by “FC Column 1” in the “License Requirements” section of the corresponding Export Control Classification Numbers (ECCNs). In support of the OAS Model Regulations, the U.S. Government requires an Import Certificate (IC) for the export to all OAS member countries of those items affected by the regulations. In general, the Department approves license applications for the export of firearms to OAS member countries if the application is supported by an IC. The Department denies applications that involve end-uses linked to drug trafficking, terrorism, international organized crime, and other criminal activities. As discussed later in this chapter, during FY 2004 approximately 43 percent of all approved crime control license applications were for items also controlled for FC reasons to OAS member countries.
The Department of Commerce controls certain tear gas formulations on the Commerce Control List for crime control reasons. The Department of State controls other tear gas formulations on the United States Munitions List (USML). As a result of an ongoing review of the USML as part of the Defense Trade Security Initiative, the Department of State transferred export licensing jurisdiction over liquid pepper, a tear gas, to the Department of Commerce. On July 19, 2004, the Department published an amendment to the EAR to add liquid pepper to the Commerce Control List. The addition was a new foreign policy control, for which the Department submitted a report to Congress on July 2, 2004.
The Department of State annually compiles the Country Reports on Human Rights Practices. The Department of State prepares these reports in accordance with Sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961, as amended, for submission to Congress. The factual information presented in these reports is a significant element in licensing recommendations made by the Department of State. In accordance with the Foreign Assistance Act, there is a policy of denial for license applications to export crime control items to any country in which the government engages in a consistent pattern of gross violations of human rights.
The International Religious Freedom Act of 1998 (IRFA) calls for the President to take diplomatic or other appropriate action with respect to any country that engages in or tolerates violations of religious freedom. IRFA also provides for the imposition of economic measures or commensurate actions when a country has engaged in systematic, ongoing, egregious violations of religious freedom accompanied by flagrant denials of the rights to life, liberty, or the security of persons, such as torture, enforced and arbitrary disappearances, or arbitrary prolonged detention. For such countries, IRFA provides that the Department of Commerce, with Department of State concurrence, shall include on the CCL for reasons of crime control or detection, and require export licenses for, items that are being used, or are intended for use, directly and in significant measure, to carry out particularly severe violations of religious freedom.
On September 15, 2004, the Secretary of State, acting under the authority of the President, designated eight countries as "countries of particular concern" under the Act for having engaged in or tolerated particularly severe violations of religious freedom. The Secretary’s decision included re-designation of five countries that he designated last year: Burma, China, Iran, North Korea, and Sudan. He had designated Iraq last year but removed it from this year’s list since the new transitional government is working to protect religious freedom. The Secretary’s decision included designating three new countries to the list: Eritrea, Saudi Arabia, and Vietnam. These designations are explained in the most recent Department of State International Religious Freedom Report to the Congress dated September 15, 2004. The Department of Commerce has not added additional items to the CCL pursuant to IRFA, but it reviews license applications for crime control items to these destinations by applying the most restrictive licensing policy applicable to such countries.
These controls seek to ensure that U.S.-origin crime control equipment is not exported to countries where governments fail to respect internationally recognized human rights, or where civil disorder is prevalent. Denial of export license applications to such countries helps to prevent human rights violations and clearly signals U.S. concerns about human rights in these countries. The license requirements for most destinations allow for close monitoring of exports of certain crime control items that could be misused to commit human rights violations.
Controls on implements of torture similarly help to ensure that such items are not exported from the United States. The Department of Commerce has neither received applications for export of “specially designed” implements of torture nor would it approve the export of such items. In addition, the Department of Commerce approved no license applications for the export of thumbcuffs.
1. Probability of Achieving the Intended Foreign Policy Purpose. The Secretary has determined that these controls are likely to achieve the intended foreign policy purpose, in light of other factors, including the fact that the foreign policy purpose cannot be achieved through negotiations or other alternative means. The lack of complementary controls by other producer nations limits the effectiveness of these controls in preventing human rights violations. However, the controls restrict human-rights violators’ access to U.S.-origin goods and provide important evidence of U.S. support for the principles of human rights. In addition, the imposition of stringent licensing requirements for crime control items enables the U.S. Government to more closely monitor items that could be used in human rights violations.
2. Compatibility with Foreign Policy Objectives. The Secretary has determined that these controls are compatible with U.S. foreign policy objectives; and that the extension of this control program will not have any significant adverse foreign policy consequences. This control program is fully consistent with U.S. policy in support of internationally recognized human rights, as expressed by successive Administrations and Congress.
3. Reaction of Other Countries. The Secretary has determined that any adverse reaction to these controls is not likely to render the controls ineffective, nor will any adverse reaction by other countries be counter-productive to U.S. foreign policy interests. These controls are unique, serve a distinct foreign policy purpose, and arise out of deeply held convictions of the U.S. Government. Other countries currently do not have equivalent regulations, but many have restrictions on exports of lethal products to areas of civil unrest.
4. Economic Impact on United States Industry. The Secretary has determined that any adverse effect of these controls on the economy of the United States, including on the competitive position of the United States in the international economy, does not exceed the benefit to U.S. foreign policy objectives. In FY 2004, the Department of Commerce approved 2,234 export license applications valued at approximately $280 million for crime control items. Table 1 lists the total number and value (by ECCN) of export licenses that the U.S. Government issued for crime control items during FY 2004.
| ECCN | Items Controlled | Applications Approved | $ Value |
|---|---|---|---|
0A978 |
Saps | 0 | $0 |
| 0A979 | Police helmets and shields | 70 | $4,943,818 |
| 0A982 | Restraint devices, e.g., leg irons, shackles, handcuffs | 214 | $14,408,145 |
| 0A983 | Specially designed implements of torture | 0 | $0
|
| 0A984 | Shotguns and buckshot shotgun shells | 693 | $22,367,061 |
| 0A985 | Discharge type arms (stun guns, shock batons, etc.) | 129 | $62,611,161 |
| 0A987 | Optical sighting devices | 549 | $59,711,124 |
| 0E982 | Technology for items under 0A982/0A985 | 0 | $0 |
| 0E984 | Technology for items under 0A984 | 0 | $0 |
| 1A984 | Chemical agents including tear gas containing 1% or less of CS or CN | 40 | $15,227,046 |
| 1A985 | Fingerprinting powders, dyes, and inks | 151 | $12,263,842
|
| 3A980 | Voice print identification and analysis equipment | 5 | $27,399 |
| 3A981 | Polygraphs, fingerprint analyzers, cameras, and equipment | 316 | $37,292,079 |
| 3D980 | Software for items under 3A980 and 3A981 | 17 | $1,421,635 |
| 3E980 | Technology for items under 3A980 and 3A981 | 4 | $30,102 |
| 4A003* | Digital computers for computerized fingerprint equipment only | 0 | $0 |
| 4A980 | Computers for fingerprint equipment | 17 | $24,686,140 |
| 4D001* | Software for items under 4A003 only | 0 | $0 |
| 4D980 | Software for items under 4A980 | 22 | $24,369,630 |
| 4E001* | Technology for items under 4A003 and 4D001 only | 0 | $0 |
| 4E980 | Technology for items under 4A980 | 1 | $1 |
| 6A002c* | Police-model infrared viewers only | 6 | $183,508 |
| 6E001* | Technology for development of items under 6A002c only | 0 | $0 |
| 6E002* | Technology for production of items under 6A002c only | 0 | $0 |
| 9A980 | Mobile crime science laboratories | 0 | $0 |
| TOTAL | 2,234 | $279,542,691 |
NOTES: (1) To give the reader the broadest perspective of the items covered, Table 1 lists all crime control ECCNs including those for which no license applications were submitted. (2) Those ECCNs marked with an asterisk (*) list items that are controlled for crime control reasons and for other reasons, but the corresponding statistics represent only the crime control items within the ECCN.
In FY 2004, the Department of Commerce denied 24 applications for crime control items valued at about $1.5 million. This represents approximately .5 percent of the total exported value and approximately 1 percent of the total number of the applications received. The largest number of denials involved shotguns (nine cases), but police helmets/shields accounted for the highest value amount of denials. Table 2 lists only those crime control ECCNs for which applications were denied.
| ECCN | Description | Applications Denied | $ Value |
|---|---|---|---|
| 0A979 | Police helmets, shields | 2 | $885,800 |
0A982 |
Restraint devices, e.g., leg irons, shackles, handcuffs | 3 | $25,715 |
| 0A984 | Shotguns and shotgun shells | 9 | $302,545 |
| 0A985 | Discharge type arms (e.g., stun guns, shock batons) | 1 | $51,150
|
| 0A987 | Optical sighting devices for firearms | 4 | $250,264 |
| 1A985 | Fingerprinting powders, dyes, and inks | 1 | $375 |
| 3A981 | Polygraphs/fingerprint analyzers | 3 | $21,935 |
| 3D980 | Software for items under 3A980 and 3A981 | 1 | $1,000 |
| TOTAL | 24 | $1,538,784 |
In FY 2004, the Department of Commerce approved 804 export license applications valued at almost $52 million for items affected by the foreign policy controls on firearms and ammunition instituted in 1999 in support of the OAS Model Regulations. Licenses to Canada account for more applications than any other country, with 493 applications in FY 2004. The table below lists the number and value of export licenses that the Department of Commerce issued for firearms, ammunition, sights, and related items affected by the foreign policy controls applied to OAS countries in FY 2004.
| ECCN | Items Controlled | Applications Approved | $ Value |
|---|---|---|---|
0A984 |
Shotguns and buckshot shotgun shells | 536 |
$19,123,987 |
0A986 |
Other shotgun shells | 201 |
$16,365,914 |
0A987 |
Optical sighting devices for firearms | 210 |
$16,173,955 |
804 |
$51,658,456 |
* NOTE: Items in 0A986 are controlled only for Firearms Convention reasons. Items in 0A984 and 0A987, however, are controlled both for Firearms Convention and Crime Control reasons. The statistics in this table for 0A984 and 0A987 are a subset of the Crime Control statistics provided in Table 1 of this chapter.
5. Effective Enforcement of Controls. The Secretary has determined the United States has the ability to effectively enforce these controls. Crime control items and implements of torture are easily recognizable and do not present special enforcement problems related to detecting violations or verifying use. However, enforcement cooperation with other countries generally is difficult in cases involving unilaterally controlled items such as these, and often depends on the type and quantity of goods in question. In addition, enforcement of controls on reexports is challenging and rests in large part on the willingness of the recipient to abide by the terms of the export license. The U.S. Government conducts post-shipment verifications to ensure that the listed end-user has received the exports and to confirm that the end-user is using the controlled items in a way consistent with the license conditions.
In June 2004, the Department announced that Stoelting Company (Stoelting) of Wood Dale, Illinois, agreed to a $44,000 civil penalty and a five-year denial of export privileges to settle charges that it exported polygraph machines to the People’s Republic of China (PRC) in violation of the Export Administration Regulations (EAR). Stoelting’s President, LaVern Miller, also agreed to pay a $44,000 civil penalty to settle related charges. The five-year denial of export privileges is suspended provided Stoelting does not violate the EAR during that period.
The Department charged that between January 1998 and February 1999, Stoelting, under the direction of Miller, knowingly exported and attempted to export polygraph equipment without the required export licenses from the Department of Commerce. The polygraph equipment was diverted through Italy and Taiwan to the PRC. The Department of Commerce controls the export of polygraph equipment to the PRC for crime control reasons.
In related criminal cases, Miller and Stoelting have also pled guilty in the Northern District of Illinois to violating the International Emergency Economic Powers Act.
The Department of Commerce consulted with the Regulations and Procedures Technical Advisory Committee (RPTAC), one of six such committees that advises the Bureau of Industry and Security (BIS), in preparation for removing the licensing requirement for most crime control items to the seven new NATO member states. The Department published the implementing regulation on June 28, 2004. The Department also consulted with the RPTAC in preparation for the energetic materials regulation which expanded the Department’s foreign policy controls on tear gas chemicals. The Department published this regulation on July 19, 2004.
In a September 28, 2004, Federal Register notice, the Department of Commerce solicited comments from industry on the effectiveness of U.S. foreign policy-based export controls. Comments were solicited from all six of the Department’s Technical Advisory Committees, as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS Web site. The comment period closed on November 19, 2004, and 12 comments were received.
One comment was specific to crime controls, stating support for the use of these controls but also advocating that future development of the controls should focus on gaining international support for such controls. The commentator advocated finding ways of focusing the controls, rather than imposing new controls. Without international support, the comment argued, U.S. industries could suffer and human rights violations could escalate throughout the world. A detailed review of all comments received can be found in Appendix I.
In addition, the Department of Commerce has consulted extensively with exporters of crime control items and with human rights groups concerned about the potential for misuse of such items in various parts of the world. The Department has frequent consultations with exporters about specific items proposed for export to specific end-users and end-uses. In December 2003, the Departments of State and Commerce consulted with Amnesty International to discuss a wide range of issues relating to crime control items. The U.S. Government has made certain changes in the licensing policy and controlled commodities in response to the concerns of human rights groups.
Most other countries that supply crime control and detection items have not imposed similar export controls. The United Kingdom and Canada maintain controls similar to U.S. controls on certain crime control commodities. Certain European Union member-states prohibit or impose an authorization requirement on the export of dual-use items not covered by the multilateral export control regimes for reasons of public security or human rights considerations. The U.S. Government consults regularly with other member countries in the Wassenaar Arrangement, the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Australia Group regarding U.S. export controls.
Section 6(n) of the Act requires the Department of Commerce to maintain export controls on crime control and detection equipment. Alternative means do not satisfy this statutory requirement. The U.S. Government does, however, use diplomatic efforts, sanctions, and other means to convey its concerns about the human rights situation in various countries.
The foreign availability provision does not apply to Section 6(n) of the Act.6 Congress has recognized the usefulness and symbolic value of these controls in supporting U.S. Government policy on human rights issues, foreign availability notwithstanding.
5 Citations following each of the foreign policy control programs refer to sections of the Export Administration Regulations (EAR), 15 CFR Parts 730-774, that describe the control program.
6 Provisions pertaining to foreign availability do not apply to export controls in effect before July 12, 1985, under Sections 6(i) (International Obligations), 6(j) (Countries Supporting International Terrorism), and 6(n) (Crime Control Instruments). See the Export Administration Amendments Act of 1985, Public Law No. 99-64, Section 108(g)(2), 99 Stat. 120, 134-35. Moreover, Sections 6(i), 6(j), and 6(n) require that controls be implemented under certain conditions without consideration of foreign availability.
