Nebraska-based Springer Magrath Co. pleaded guilty to criminal export violations and agreed to pay a $50,000 fine for its shipment of cattle prods to South Africa in 2002 without a license. Cattle prods and other discharge type arms such as stun guns are controlled by ECCN 0A985 and require a license for all destinations except Canada.

Springer Magrath is an agricultural supply house for cattle ranchers, selling such products as calf feeders and calf adoption powder, so it is safe to assume that the people there had never heard of the Commodity Control List prior to their visit from federal authorities. Frankly, many people who have heard of the Commodity Control List might be equally surprised that cattle prods appear on the list. And with good reason. Although cattle prods are, admittedly, often used as devices of torture, they are widely available from sources outside the U.S.

Well, close, but not exactly. The fine arose from export of bubonic plague toxins to Tanzania where, like coal in Newcastle, bubonic plague (both in the wild and in the laboratory) is plentiful.

In the September 14 Federal Register, the BIS announced that it had reached a settlement with Dr. Thomas Butler relating to BIS charges that Dr. Butler had exported vials of bubonic plague to Tanzania without a license. Under the settlement agreement Dr. Butler agreed to pay $34,700 in penalties. Additionally he consented to losing his export privileges for 10 years.

This represents what is probably the final chapter in the Dr. Butler’s saga with the Federal Government which began in January 2003, when he reported that vials of bubonic plague that had been in his research laboratory at Texas Tech University had gone missing. Although the fate of those vials was never determined, Dr. Butler was charged with a number of unrelated offenses arising out of the investigation of the missing vials. In December 2003, the jury dismissed most of the criminal charges against Dr. Butler; it did, however, uphold a criminal export violation charge arising out of the shipment of vials of bubonic plague to Tanzania.

Dr. Butler was sentenced to 2 years in jail on the export violation charge, a sentence which he completed after 19 months in November 2005. In addition, Dr. Butler lost his medical license and his tenured teaching position at Texas Tech. That, however, wasn’t apparently enough in the view of BIS, which piled on the additional civil penalties after Dr. Butler was released from jail.

At the sentencing hearing on the criminal charge, Dr. Butler stated that the vials that he shipped to Tanzania belonged to the Government of Tanzania which had released them to him on condition that they be returned. Additionally, there was expert testimony — reasonable in my view — that BIS would have routinely granted a license to export the vials of bubonic plague to Tanzania given the widespread availability in Tanzania of isolated strains of bubonic plague. Neither of these are, of course, a defense, but they both raise the question of why BIS would continue to pursue the matter after a 2-year prison term had already been imposed by the court.

The Federal Government’s treatment of Dr. Butler has been widely criticized by the scientific community which has argued that the harsh treatment accorded to him would deter other scientists and physicians from engaging in research to provide treatments for germs that could be used as agents of biological warfare. See the complete chronology of Dr. Butler’s case as maintained here by the federation of American Scientists. The Cleveland Plain Dealer also published an excellent and informative 7-part series on Dr. Butler.

An excellent article in the current Business Week underlines the indefensibility of current export controls imposed by BIS on commodities which are listed in the “Crime Control” category.

But another striking form of tech commerce with China is taking place below the radar of the U.S. public: Major American manufacturers are rushing to supply China’s police with the latest information technology.

Oracle Corp. (ORCL) has sold software to the Chinese Ministry of Public Security, which oversees both criminal and ideological investigations. The ministry uses the software to manage digital identity cards that are replacing the paper ID that Chinese citizens must carry. Meanwhile, regional Chinese police departments are modernizing their computer networks with routers and switches purchased from Cisco Systems Inc. (CSCO ) And Motorola Inc. (MOT ) has sold the Chinese authorities handheld devices that will allow street cops to tap into the sorts of sophisticated data repositories that EMC Corp. (EMC ) markets to the Ministry of Public Security.

Because of concerns of persistent human rights violations in China, BIS limits exports of equipment in the Crime Control (CC) category to China. The problem is that the BIS’s concept of crime control hasn’t made it much past the Keystone Kops era. Sophisticated information systems and equipment, even when specially designed for use by police forces, are not controlled under the CC category. Rather the CC controls cover such low-tech items as thumbcuffs, shackles, handcuffs, polygraphs, and fingerprint inks and dyes.

The controls on the export of polygraph equipment have always struck me as ironic. Polygraph equipment is considered so unreliable that polygraph evidence is not admissible in federal courts. Polygraphs are, frankly, not much better at detecting lies than Magic 8-Balls so one must wonder if BIS will announce controls on them as well.

Right before the Labor Day Holiday, BIS issued amendments to the EAR which changed considerably the treatment of exports of items on the CCL to Libya. These changes were the inevitable result of the action of the State Department on June 30, 2006, which rescinded the designation of Libya as a state sponsor of terrorism.

Under the new rules a license will no longer be required for commodities that are EAR99 or that were controlled for anti-terrorism (“AT”) reasons. All other items on the CCL will require a license to Libya. Foreign made items on the CCL that incorporate a minimum of 25% U.S. origin content also will require a license. BIS has indicated that license applications for these commodities will be considered on a case-by-case basis and will not be subject to a presumption of denial.

A number of significant controls on exports to Libya remain unchanged after the BIS amendments. First, the BIS action has no effect on DDTC’s continuing policy of banning exports of defense articles and services to Libya.

Second, the BIS action does not affect existing restrictions on exports related to “installed base” items in Libya. “Installed base” items are items that were exported to Libya prior to April 29, 2004, the date on which the comprehensive embargo against Libya was lifted. U.S. companies cannot engage in any activities with respect to the “installed base” without a prior license or report to BIS. Whether or not a license or report is required depends upon the type of export. Exports of items that weren’t on the CCL, were on the CCL and were controlled for reasons other than anti-terrorism (“AT”) or national security (“NS”) reasons, or are subject to export to Libya pursuant to a license exception, only require a report. All others require a license prior to engaging in any activities regarding such “installed base” items.

Third and finally, although OFAC removed a number of Libyan enterprises and government officials from the SDN list back in April 2004 when the comprehensive embargo was lifted, there are still a number of Libyan individuals and entities who remain on the list. Unlicensed transactions with Libyan SDNs remain prohibited nowithstanding the BIS amendments.