BIS Regulatory Agenda Includes New Mention of EAR Changes for Hong Kong, Tech Controls
The Commerce Department published its fall 2020 regulatory agenda for the Bureau of Industry and Security, including new mentions of rules to amend Hong Kong under the Export Administration Regulations, releases of controlled technologies to standards setting bodies and a range of new technology controls.
The agenda includes a new mention of a final rule that would remove Hong Kong as a separate destination from China under the EAR. The rule may include “other amendments,” BIS said, adding that Beijing’s actions to undermine Hong Kong’s autonomy raise the risk that sensitive U.S. technologies will be diverted to unauthorized end-users in mainland China. BIS suspended license exceptions for Hong Kong in June and hinted that more changes were coming (see 2006300050 and 2007300006). BIS said it aims to issue the rule in February.
The agenda also includes a new mention of a final rule that would clarify how the EAR applies to the release of technology for “standards setting or development in standards organizations.” The rule includes a “new section” to “specifically make such releases not subject to the EAR,” building off an interim final rule in June that allowed U.S. companies to more easily participate in standards-setting bodies in which Huawei is a member (see 2006160035). Companies and trade groups have asked BIS to expand the EAR exemption to all companies on the Entity List in the context of standards setting bodies (see 2008280029). BIS plans to issue the rule in January.
Another new rule would propose changes to export controls for certain semiconductor items. The rule would revise the Commerce Control List to place controls on semiconductor-related technologies that the U.S. has proposed at the Wassenaar Arrangement. BIS hopes to issue the rule in February.
The agenda also newly mentioned a proposed rule that would seek public comments on revisions to controls on certain “spraying or fogging systems.” The rule follows a 2018 notice of inquiry about the potential revisions, which includes revisions to restrictions for parts and components of the spraying or fogging systems. BIS plans to issue the rule in April.
Another new menton is an interim final rule that would revise the de minimis and license exceptions for certain components of lithographic equipment. The rule would amend the EAR to expand license requirements on certain foreign-made items destined for countries of “national security concern,” BIS said. The agency had aimed to issue the rule in November.
The agenda also includes a new mention of a pre-rule that would update certain Country Groups in the EAR and remove certain license exceptions. The rule would restructure and streamline the current Country group structure used to “determine license requirements” for items subject to the EAR, BIS said. The agency said these proposed changes would “better align and more accurately reflect the current national security, foreign policy or proliferation-related concerns of the United States Government.” BIS aims to issue the rule in January.
Another newly mentioned final rule would clarify and amend the scope of Export Control Classification Number 1C991 to reflect decisions made at the 2019 Australia Group plenary. The rule would amend ECCN 1C991 -- which covers vaccines, immunotoxins, medical products and diagnostic and food testing kits -- to “indicate that it includes not only vaccines against, but also those containing, any of the items identified in ECCN 1C351, 1C353 or 1C354,” BIS said. BIS said the “common control list” that contains these items “was not specific as to whether the vaccine release” applied to vaccines “containing the genetic elements and genetically modified organisms on the list that are also identified in ECCN 1C353 on the CCL.” BIS recently completed an interagency review of this rule (see 2012090006) and hopes to publish it in February 2021.
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 (*).
| Pre-Rule Stage |
|---|
| *Updating of Country Groups and Removal of certain License Exceptions; Proposed rule |
| Proposed Rule Stage |
| Clarification of the Definition of a Routed Export Transaction |
| License Exception AVS Updates and Clarifications |
| Nuclear Propulsion Plant End-Use Restrictions; Restrictions on Shipments to Aircraft and Vessels or to Installations and Facilities Located in International or Foreign Waters or in Antarctica |
| Commerce Control List: Amendments to Controls Related to Military Vehicles, Vessels of War, Submersible Vessels, Oceanographic Equipment, and Auxiliary and Miscellaneous Military Equipment |
| Commerce Control List Changes due to Revisions to Categories V, X and XI of the U.S. Munitions List (USML) |
| Information Security Controls: Cybersecurity Items |
| Review of Commerce Control List for Items Transferred From United States Munitions List Categories IV and XV |
| Clarifications of Availability and Expansion of Restrictions on Availability of License Exception Strategic Trade Authorization Under the Export Administration Regulations |
| Identification and Review of Controls for Certain Foundational Technologies |
| Export Controls for Additive Manufacturing Equipment for Printing of “Energetic Materials” |
| Additional Protocol Regulations: Establishment of a Mandatory Electronic Submission Requirement for Reports |
| *Commerce Control List: Proposed Revisions to the Controls on Certain Spraying or Fogging Systems and “Parts” and “Components” Therefor; Request for Comments |
| *Export Controls for Certain Semiconductor Items |
| *Emerging Technology Proposed Controls |
| Final Rule Stage |
| Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the USML |
| Revisions, Clarifications, and Technical Corrections to the EAR |
| Revisions of the Section 232 Steel and Aluminum Tariff Exclusions Process |
| Updated Statements of Legal Authority for the Export Administration Regulations |
| Modification of License Exception Additional Permissive Reexports (APR) |
| Amendments to Existing Validated End-User Authorizations in the People's Republic of China and India: Samsung China Semiconductor Co. Ltd and GE India Industrial Pvt Ltd. |
| Export Controls for Quantum Computers |
| Wassenaar Arrangement 2018 Plenary Agreements Implementation; and Other Revisions Related to National Security Controls |
| Amendments to the Export Administration Regulations: Corrections and Clarifications |
| Addition of Software Specially Designed to Automate the Analysis of Geospatial Imagery to the Export Control Classification Number 0Y521 Series |
| Multi-Gate Field-Effect Transistors (FET) Technology |
| Amendments to the Chemical Weapons Convention Regulations and the Export Administration Regulations to Reflect Additions to Schedule 1(A) of the Annex on Chemicals to the Chemical Weapons Convention |
| Addition of Huawei Non-U.S. Affiliates to the Entity List, the Removal of Temporary General License, and Amendments to General Prohibition Three (Foreign-Produced Direct Product Rule) |
| Export Administration Regulations: Implementation of Wassenaar Arrangement 2019 Plenary Agreements |
| Amendments to Country Groups for Pakistan Under the Export Administration Regulations |
| *Release of Technology to Standards Organizations |
| Commerce Control List: Proposed Controls on “Software” for the Operation of Certain Automated Nucleic Acid Assemblers and Synthesizers; Request for Comments |
| *Commerce Control List: Clarifications to the Scope of Export Control Classification Number 1C991 to Reflect Decisions Adopted at the June 2019 Australia Group Plenary Meeting |
| *Amendment to Country Groups for Ukraine, Mexico and Cyprus Under the Export Administration Regulations |
| *Change to the License Review Policy for Unmanned Aerial Systems (UAS) to Reflect Revised United States UAS Export Policy |
| *Export Administration Regulations: Corrections and Clarifications |
| *Removal of Hong Kong as a Separate Destination Under the Export Administration Regulations |
| *Increasing Transparency of 232 Investigations by Requiring a Public Submission for a Request or Application for an Investigation |
| *Editorial Revisions, Clarifications, and Corrections to the Export Administration |
| *Procedures to Grant Relief From the Quantitative Limitation Applicable to Certain Steel Articles for Brazil for Parties With Preexisting Contracts That Meet Specified Criteria |
| *Commerce Control List: Amendments to Reflect Updates to the Australia Group Common Control Lists |
| *Export Administration Regulations: Implementation of Wassenaar Arrangement 2020 Plenary Agreements |
| *Revisions to De Minimis and License Exceptions for Certain Components of Lithographic Equipment |
| *Implementation in the Export Administration Regulations of the United States' Rescission of Sudan's Designation as a State Sponsor of Terrorism |
| *Addition of Entities of Concern |
| *Revisions to the Export Administration Regulations: Items Controlled for Crime Control Reasons |