US BIS: Amendment to EAR Licensing Policy for Crime Control Items

Mechanism

BIS administers controls on items designated for Crime Control (CC) reasons under the Commerce Control List (CCL). CC-designated items — historically shotguns, less-lethal munitions, batons, restraints, handcuffs, shackles, and biometric authentication devices (fingerprint analyzers, polygraphs, voice-stress analyzers) — are controlled because of their dual-use potential to facilitate human rights abuses, particularly by authoritarian security services.

Prior to this rule, the EAR stated a general licensing policy for CC items but did not explicitly articulate human rights concerns as a named review factor. This October 2020 final rule did two things:

1. CC-specific revision: Clarified that BIS will review CC item license applications on a case-by-case basis and generally deny where (a) there is civil disorder in the destination country or region, or (b) BIS assesses that there is a meaningful risk the items will be used to violate or abuse human rights — including through censorship, surveillance, detention without due process, or excessive use of force.

2. EAR-wide extension: Added a provision directing that, for license applications for items controlled for reasons other than CC (and other than short supply), BIS will also consider human rights concerns in its review. This embedded human rights as a universal review factor across the EAR license-application framework — a significant doctrinal expansion beyond the historical CC-only scope.

The rule was published and took effect simultaneously (October 6, 2020), with no transition period.

Downstream implications

• Exporters of CC-controlled biometric, surveillance, and less-lethal equipment gained explicit

regulatory notice that human rights country assessments will be factored into their license outcomes — creating compliance risk for contracts with security services in countries with documented abuses.

• The rule predated and laid policy groundwork for subsequent BIS actions on cyber-surveillance

(2021-10-21 interim final rule on cybersecurity items) and entity-list additions for human rights reasons (e.g., 2023-03-30 entity list additions for Burma, China, Nicaragua, Russia).

• Practically, for OECD-destination exporters the change is minimal — most allied-country

destinations were already eligible for license exceptions or favorable review. The bite is at the margin: contracts with non-OECD security forces in countries with contested human rights records (e.g., Gulf states, Central Asia, Southeast Asia) now face heightened scrutiny.

Open questions

• BIS did not publish a quantified list of destinations affected by the civil-disorder or

human-rights risk finding. Operationalizing the rule requires case-by-case country assessments drawing on State Department human-rights reporting and BIS's own internal analysis.

• The rule's extension to non-CC items (point 2 above) was not accompanied by a revised CCL

licensing policy table entry — it was buried in preamble text. How BIS applies this factor in practice to, say, EAR99 commercial goods remains under-documented; see BIS's 2023 Human Rights FAQ for later clarification.