Jul

18

Better Get An Export License For That Belt


Posted by at 8:34 pm on July 18, 2012
Category: BIS

Humane RestraintsA Wisconsin-based company, with the appealing name Humane Restraints, Inc., recently agreed to settle charges that it exported without licenses various restraining items worth approximately $15,000 and classified under ECCN 0A982. Pursuant to the settlement agreement, Humane Restraints agreed to a $465,000 fine and a two-year export denial order. All but $50,000 of the fine was suspended contingent upon no further export violations or violations of the denial order. Additionally, the denial order exempts exports to Canada from its prohibitions.

The charging letter describes the exports as “various restraint devices, including, but not limited to strait jackets, bed restraints, and wrist and ankle restraints.” Bed restraints? Yes, you read that right: bed restraints. BIS is saying that bed restraints require export licenses. The problem here is that the Note to ECCN 0A982 states that it “applies to restraint devices used in law enforcement activities.” The Note explicitly excludes “medical devices that are equipped to restrain patient movement during medical procedures,” which seems to me to cover bed restraints directly.

Perhaps BIS is thinking that the ECCN covers bed restraints because law enforcement might sometimes use them, even if they are principally used by hospitals and medical facilities. If that’s the case, the ordinary cable ties that you buy at Target are then ECCN 0A982 because police often use cable ties as an alternative to hand cuffs. They might use rope, twine and belts too, when handcuffs and cable ties aren’t at hand. Even so, I am aware of at least one instance in which BIS has issued a CCATS on cable ties as EAR99 even though they could be, and are, used by law enforcement.

This all underlines the inherent vagueness of ECCN 0A982. Of course, there is a fairly central core of items that are clearly covered by that ECCN. Handcuffs, for instance, clearly fall within this ECCN. (Adventurous honeymooners under the thrall of Fifty Shades of Grey and headed for Bermuda might want to keep this in mind!) And some of the items exported by Humane Restraints seem to fall within the group of things clearly covered by the ECCN, such as ankle hobbles.

Probably the ultimate reason the Humane Restraints was whacked so badly by BIS involved its exports of straitjackets. Again, I don’t think that straitjackets are devices used in law enforcement activities. But, according to the settlement documents, Customs seized an export of one straitjacket, thereby putting Human Restraints on somewhat clearer (if dubious) notice that straitjackets were covered by ECCN 0A982, and yet Humane Restraints exported three more straitjackets without licenses after that seizure. And that, you might say, was all she wrote.

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7 Comments:


Straitjackets are licensed for the same reason cattle prods are licensed ~ instruments of torture

Comment by Lisa S on July 19th, 2012 @ 3:17 am

    The problem, Lisa, is not whether there is a good reason to control straitjackets. The issue is whether the language of 0A982 covers them. The ECCN doesn’t control everything used for torture. If it did you would need a license to export water, or pliers, or any number of things. No, the language of the ECCN covers only restraint devices “used in law enforcement activities.” My point is that straitjackets do not clearly meet this definition.

    Comment by Clif Burns on July 19th, 2012 @ 7:55 am

My former company exported equipment that often required plastic cable ties during installation. Because our cable ties were typically large enough to be used as handcuffs, our standard policy required that cable ties be procured locally in the end-user’s country. When 0A982 was revised in 2010 to remove “plastic handcuffs” and to make the ECCN specific (at least before the first semicolon) to law enforcement activities, we decided to get a CCATS, which fortunately placed our cable ties under EAR99.

Regarding your comments about bed restraints and the ECCN Note, I never liked the way BIS re-wordsmithed this ECCN. The note tells us that the entire ECCN is for law enforcement activities, but the actual language of the ECCN could be interpreted to limit law enforcement to the clause before the first semicolon. But even semicolons can be tricky (i.e., ambiguous) if you don’t know the intent of the author. Punctuation is not trivial, and as you know (better than me, I’m sure) many court decisions have been decided on how a law or reg was punctuated.

Comment by Mark S. on July 19th, 2012 @ 9:07 am

    You are absolutely right, Mark. Without the Note there would be an argument that the law enforcement restriction only applied to the clause before the first semicolon, i.e., restraint devices, but not the stuff afterwards, such as straitjackets. But the Note qualifies everything in the ECCN. The entire ECCN is a poorly drafted mess and BIS ought to spend time fixing it instead of trying to enforce it against the business community.

    Comment by Clif Burns on July 19th, 2012 @ 12:32 pm

Ordinary cable ties purchased at Target are not used by law enforcement. Those types of restraints usually were made with wires embedded in them or special plastics to prevent breaking. Many in law enforcement have stopped using those becuase they do age. One bus load of prisoners being transported to court gleefully unloaded and handed their broken “flex cuffs” to the awaiting guards. Now days many have gone away from those types in favor of woven cloth version. No, the flex ties at Target are not the same.

Comment by Larry Panigot on July 22nd, 2012 @ 8:08 pm

It was my understanding that cable ties – the kind one would buy at Target – were controlled at or about the same time machetes made their debut under ECCN 0A988. Both were central players in the massacre in Rwanda. The control on plastic handcuffs had nothing to do with legitimate police activities.

Comment by MJ on July 24th, 2012 @ 12:32 am

By the way, I, too, submitted a CCR for cable ties plenty long enough to bind hands and feet, and plenty strong, too. It was the kind of cable tie one might buy at a DIY store. The CCATS came back EAR99.

Comment by MJ on July 24th, 2012 @ 12:40 am