The Bureau of Industry and Security (“BIS”) released today a notice of a final rule amending certain of the rules relating to crime control commodities. Items covered by BIS’s crime controls are controlled because of the fear that these items will be used for torture and other human rights violations. Three parts of the new rule seem worthy of comment.

First, the new rule amends the classification for thumbcuffs. Thumbcuffs have been moved from ECCN 0A982 to ECCN 0A983. the reason for the change is the stricter licensing policy applicable to items in ECCN 0A983. Items in ECCN 0A983 are subject to a general policy of denial whereas items in ECCN 0A982 are subject to favorable case-by-case consideration unless there is civil disorder or a history of human rights violations in the country to which the cuffs are being exported. (Newlyweds with adventurous tastes might keep this in mind when packing for their honeymoon, since the License Exception BAG, which covers personal effects carried in baggage, doesn’t apply to ECCNs 0A983 or 0A982.)

Second, the new rule amends section 740.2(a)(4) of the EAR — which eliminates the use of license exceptions in most instances for exported goods subject to crime controls. The new rule replaces the word “commodities” in the prior version of the rule with the word “items.” The purpose of this change was to make clear that the restrictions of section 740.2(a)(4) apply to software and technology and not just to physical commodities.

Finally, the new rule amends section 740.2(a)(4) to allow license License Exception GOV to be used for exports of crime control items to U.S. government personnel and agencies. BIS’s notice of the Final Rule explained this change as follows:

Although this change applies to any U.S. Government agency, BIS is making it at this time because of the need to supply U.S. armed forces in locations that, prior to publication of this rule, would be subject to the geographic restriction on use of License Exceptions for crime control items.

Okay, now everyone who believes that, raise your hands. Hmm. I only see a couple of hands. Now, everyone who believes that the purpose of the change is to permit exports of crime control items to U.S. government employees using “enhanced interrogation techniques” on suspected terrorists, raise your hands. Just what I suspected. A lot more of you have raised your hands. Of course, we can’t be sure that this was BIS’s motivation but we can be sure that if it was, BIS wouldn’t say so.

In an earlier post, we took the Bureau of Industry and Security (“BIS”) to task for filing a default motion against William Kovacs to deny his export privileges even though he was in jail for his export violation and his ability to respond to BIS’s default motion would be, well, limited. We also felt pretty sure that BIS knew where he was, because BIS’s own reports on the case indicated that Kovacs had been incarcerated.

Well, maybe BIS doesn’t really know where Kovacs is. Today BIS updated the Denied Party List (the “DPL”) and here is the entry for Kovacs:

That’s his old home address.

We might give BIS for some slack over its confusion about the real location of William Kovacs were it not for the Bureau of Prisons Inmate Locator which you can find here. Enter Mr. Kovacs’s name and the Inmate Locator will serve up a result page showing that he is currently inmate 24999-038 at the Fort Dix Federal Correctional Institute in New Jersey.

So, here’s my question. William Kovacs is a fairly common name. Suppose that an international courier service got a package from Mr. Kovacs with a gift for his favorite aunt in London. The courier checks the DPL and finds only a William Kovacs at a street address in Boxford, Massachusetts, so the courier goes ahead and ships the package. Has the courier violated BIS rules?

Now, I have suggested before that a prison address might be a red flag. But in other instances, BIS has gone out of its way to list, even to correct, prison addresses and inmate numbers on the DPL. There certainly seems no reason that they haven’t done that here.