BIS Regulatory Agenda Includes New Mention of Emerging Tech Controls, de Minimis Changes

The Commerce Department published its spring 2020 regulatory agenda for the Bureau of Industry and Security. The agenda includes a new mention of a rule to control “software” for the operation of “automated nucleic acid assemblers and synthesizers” capable of designing and building “functional genetic elements from digital sequence data.” BIS said the software can be used in the production of pathogens and toxins, with the potential for those to make their way into biological weapons if export controls on the software are lacking. The notice of proposed rulemaking, part of BIS’ effort to control emerging and foundational technologies (see 2005190052), will request industry comments about how the controls might affect “legitimate commercial or scientific applications.” BIS said it aims to issue the proposed rule this month.

The agenda also includes a new mention of an NPRM that would change the de minimis provisions in the Export Administration Regulations (EAR). Earlier this year, industry had been concerned about a potential change to the de minimis rule as the Trump administration moved to restrict foreign exports to China that contained U.S. content (see 2003050041 and 2004070024). BIS aims to issue that rule this month.

Another new mention is a final rule to impose a license requirement for exports and reexports of water cannons and “specially designed” parts and components. The rule will allow BIS to restrict exports of water cannons used for human rights violations and to restrict sales of those items to the Hong Kong Police Force. BIS expects to issue the rule in August.

The agenda includes a new mention of a proposed rule that would add certain Schedule 1 chemicals to the Chemical Weapons Convention Regulations. The proposed rule will seek comments from industry about the impact of the addition and to seek feedback about “which mixtures containing Schedule 2 chemicals must be counted for purposes of the annual declaration requirements.” BIS aims to issue the rule this month.

Another new mention is a final rule that would revise the Commerce Control List to reflect export control changes made during the 2019 Wassenaar Arrangement plenary meeting. The rule also will make “other associated changes” to the EAR and makes a correction. BIS aims to issue the rule in August. In a related rule, the agenda also contains a new mention of a final rule to adopt new emerging technology controls agreed to at the 2019 Wassenaar plenary. This new controls will cover dual-use goods and technologies (see 2006120018). BIS said it aims to issue the rule this month.

The agenda also includes a new mention of a final rule to revise the country group designations for Pakistan due to national security, foreign policy and weapons proliferation concerns. BIS said it expects to issue the rule this month.

BIS continues to mention an upcoming long-awaited proposed rulemaking involving parties’ responsibilities under the EAR in a routed export transaction (see 1905230025), which BIS said it expects to issue in September. BIS also continues to mention an advanced NPRM that would seek comments on the agency’s effort to control foundational technologies. A BIS official said in May the agency was finalizing the notice internally and was preparing to send it for interagency review (see 2005190052). In the agenda, BIS said it expected to issue the rulemaking notice last month.

Agenda Highlights

Highlights of the BIS rulemakings that are at the proposed, final or completed stages, are below. New items are marked with an asterisk (*).