On Monday, BIS announced in an “interim final” rule (a top contender for the best oxymoronic regulatory phrase ever) imposing export controls on Harry Potter’s invisibility cloak as well as on tarnhelms, the predecessor technology to the invisibility cloak. Actually, the control, which was effective immediately upon publication, was placed on a high-tech equivalent of those two items, namely, XBS epoxy systems.
The website of Space Photonics, which is the apparent developer of this technology, explains the technology. According to that website, XBS epoxy systems are
proven effective in obfuscation of critical technology components against X-Ray and Terahertz Microscopy imaging attempts … developed to conceal critical components from adversaries.
The picture on the left is a visual demonstration of the technology.
One interesting issue of an immediately effective “interim final” rule is a simple commercial issue. Suppose one of the systems was in transit on the date of publication. If it crossed the U.S. border after the rule was published, did the exporter violate the law? The rule has no grandfathering or savings provision, so the apparent answer would be that the exporter did violate the law and could be subject to civil penalties. It seems doubtful that BIS would fine someone in that situation, but it’s hard to see why the immediately effective rule did not address this issue rather than throw any such exporters on the presumed mercy of BIS.
Because it is an “interim not-yet-final but almost and pretty much but not quite final rule,” BIS will permit comments on the rule until January 15, 2016, after which BIS will presumably issue the “final and we really mean final this time final” rule.