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 to reflect its concerns about the observance of human rights 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 any destination. In addition, the U.S. Government maintains 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 Material.
The U.S. Government has a general policy of denial for 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 concerned, 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 2003.
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. In 2003, the President did not exercise 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).
In conformity with U.N. Resolution 918 and the U.N. Participation Act, the U.S. Government maintains an embargo on the sale or supply of arms and related materiel to certain entities in Rwanda. 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.
The Department of Commerce published a rule in April 1999 reflecting the provisions of the Organization of American States (OAS) Model Regulations for the Control of the International Movement of Firearms. The Department of Commerce designed these regulations to harmonize import and export controls over 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 of Commerce 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 of Commerce approves license applications for the export of firearms to OAS member countries if the application is supported by an IC. The Department of Commerce 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 2003 approximately 55 percent of all approved crime control license applications were for items also controlled for FC reasons to OAS member countries.
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 whose 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. In October 2001, the Secretary of State, acting under the authority of the President, re-designated five countries – Burma, China, Iran, Iraq, and Sudan – and designated one new country – North Korea – as “countries of particular concern” under the Act for having engaged in or tolerated particularly severe violations of religious freedom. These designations were reiterated in the most recent Department of State International Religious Freedom Report to the Congress on October 7, 2002. 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 whose 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 application 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. The controls restrict human-rights violators’ access to U.S.-origin goods and provide important symbolic evidence of U.S. support for the principles of human rights. 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 will not have any significant adverse foreign policy consequences with the extension of this control program. 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 and people. Other countries currently do not have equivalent regulations, but many have restrictions on exports of lethal products to areas of civil unrest. On January 27, 2003, the European Union issued a trade regulation proposal concerning trade in certain equipment and products that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.
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 2003, the Department of Commerce approved 1,958 export license applications valued at approximately $120.7 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 2003.
| ECCN | Items Controlled | Applications Approved |
$ Value |
|---|---|---|---|
| 0A978 | Saps | 0 |
0 |
| 0A979 | Police helmets and shields | 80 |
$7,399,599 |
| 0A982 | Restraint devices, e.g., leg irons, shackles, handcuffs | 229 |
$7,135,507 |
| 0A983 | Specially designed implements of torture | 0 |
0 |
| 0A984 | Shotguns and buckshot shotgun shells | 571 |
$19,155,315 |
| 0A985 | Discharge type arms (stun guns, shock batons, etc.) | 173 |
$12,859,656 |
| 0A987 | Optical sighting devices | 514 |
$39,305,608 |
| 0E982 | Technology for items under 0A982/0A985 | 2 |
$2 |
| 0E984 | Technology for items under 0A984 | 0 |
0 |
| 1A984 | Chemical agents including tear gas containing 1% or less of CS or CN | 29 |
$1,209,514 |
| 1A985 | Fingerprinting powders, dyes and inks | 125 |
$14,321,706 |
| 3A980 | Voice print identification and analysis equipment | 1 |
$8,700 |
| 3A981 | Polygraphs, fingerprint analyzers, cameras and equipment | 177 |
$7,913,562 |
| 3D980 | Software for items under 3A980 and 3A981 | 12 |
$3,372,498 |
| 3E980 | Technology for items under 3A980 and 3A981 | 0 |
0 |
| 4A003* | Digital computers for computerized fingerprint equipment only | 0 |
0 |
| 4A980 | Computers for fingerprint equipment | 11 |
$5,368,925 |
| 4D001* | Software for items under 4A003 only | 0 |
0 |
| 4D980 | Software for items under 4A980 | 21 |
$1,815,493 |
| 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 | 11 |
$895,695 |
| 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 | 1 |
$1,250 |
| TOTAL | 1,958 |
$120,763,031 |
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 2003, the Department of Commerce denied 29 applications for crime control items valued at about $10.7 million. The largest number of denials involved shotguns (twelve cases), but by value, discharge arms were greatest (due to denial of one license of high value). Table 2 lists only those crime control ECCNs for which applications were denied.
Table 2: CRIME CONTROL APPLICATIONS DENIED (FY 2003)
| ECCN | Description | Applications Denied | $ Value |
|---|---|---|---|
| 0A979 | Police helmets, shields | 1 |
$225 |
| 0A982 | Restraint devices, e.g., leg irons, shackles, handcuffs | 2 |
$16,000 |
| 0A984 | Shotguns and shotgun shells | 12 |
$348,618 |
| 0A985 | Discharge type arms (e.g., stun guns, shock batons) | 5 |
$10,044,817 |
| 0A987 | Optical sighting devices for firearms | 8 |
$266,000 |
| 1A985 | Fingerprinting powders, dyes, and inks | 1 |
$15,236 |
TOTAL |
29 |
$10,690,896 |
In FY 2003, the Department of Commerce approved 830 export license applications
worth $41.9 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 474 applications in FY 2003. Approximately 55 percent of all approved
crime control license applications were for items also controlled for Firearms
Convention reasons to OAS member countries. 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 these foreign policy controls
applied to OAS countries in FY 2003.
TABLE 3: APPLICATIONS FOR FIREARMS, AMMUNITION,
AND SIGHTS TO OAS COUNTRIES APPROVED IN FY 2003
| ECCN | Items Controlled | Applications Approved | $ Value |
|---|---|---|---|
| 0A984 | Shotguns and buckshot shotgun shells | 455 |
$15,810,850 |
| 0A986 | Other shotgun shells | 165 |
$12,730,517 |
| 0A987 | Optical sighting devices for firearms | 210 |
$13,317,452 |
| TOTAL | 830 |
$41,858,819 |
5. Effective Enforcement of Control. 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 verify 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 a October 21, 2003, 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 (TACs), which advise the Bureau of Industry and Security (BIS), as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS website. The comment period closed on November 21, 2003, and eight comments were received. While none of the comments specifically addressed crime controls, the Industry Coalition on Technology Transfer (ICOTT) provided general comments about all foreign policy-based export controls, stating that these controls are unilateral and largely ineffective. ICOTT recommended that unilateral controls should only be used when the symbolism of the act of imposing controls outweighs the injury to American workers and businesses. In addition, ICOTT suggested that if unilateral controls are to be imposed while the United States negotiates with its trading partners to seek multilateral support, those unilateral controls should be of limited duration. 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. It does so most frequently by almost daily consultation with exporters about specific items proposed for export to specific end-users and end-uses. The Departments of State and Commerce have 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 on certain crime control commodities that are similar to U.S. controls. 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. On January 27, 2003, the European Union issued a trade regulation proposal concerning trade in certain equipment and products that could be used for capital punishment, torture, or other cruel, inhuman or degrading treatment or punishment.
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 Act6. 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 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.
