BIS Regulatory Agenda Previews New Emerging Tech, US Persons Controls

The Commerce Department’s spring 2024 regulatory agenda for the Bureau of Industry and Security features a range of upcoming rules that could update and expand U.S. export control regulations, including new controls on the activities of U.S. persons in support of foreign military and intelligence agencies, revised regulatory language to address “diversion concerns,” new multilateral restrictions on emerging technologies and broader license requirements for Pakistan.

One new rule would propose export controls on the activities of U.S. persons if those activities support certain foreign military or intelligence end users or end uses, BIS said. The rule would propose specific “amendments” to the Export Administration Regulations to better control U.S. persons' activities as well as “exports, re-exports, and transfers (in-country) to” military and intelligence end uses and end users.

BIS added that the State Department’s Directorate of Defense Trade Controls is working on a “complementary rule” that would propose updates to the International Traffic in Arms Regulations’ defense services provisions. The agency said it’s aiming to issue its rule this month.

It’s unclear if the rule is part of the agency’s efforts to implement a provision in the FY 2023 National Defense Authorization Act that gave BIS the authority to impose controls on the activities of U.S. persons in support of foreign military, security or intelligence agencies (see 2212210032 and 2301060034). A BIS official in March said the agency was still working on that rule.

Another new rule mentioned in the Commerce agenda would revise the EAR to address “end-user concerns” for certain exports that require a license. BIS said the change would address “diversion concerns created” when the ultimate consignee in a transaction isn’t the same party as the end user, “and the end user is unknown.” BIS is hoping to issue this notice of proposed rulemaking in September.

The agenda also mentioned an interim final rule that would make several additions and revisions to the Commerce Control List, including by introducing new multilateral controls on certain “advanced technologies.” BIS said the rule would put in place controls on “several items” that the U.S. has coordinated with its “international partners,” including quantum computers, materials and related electronic assemblies; and additive manufacturing equipment -- also known as 3D printing equipment -- “designed to produce metal or metal alloy components.”

The rule would also place controls on “technology for the development or production of ‘coating systems’; software that aids in the reverse engineering of integrated circuits; and technology for the development or production of integrated circuits or devices using Gate all-around Field-Effect Transistor (GAAFET) structures.”

BIS said those items would face license requirements for “national security reasons.” The agency is hoping to issue the rule in October.

The agency also previewed a new final rule that could expand export controls against Pakistan. BIS said it will place more licensing requirements on exports and reexports to Pakistan of “certain items not currently subject to a license requirement, as determined by their classification on the Commerce control List.” This would “ensure prior U.S. Government review of exports, reexports, and transfers (in-country) involving that destination.” BIS is aiming to issue the rule in September.

Another notable new rule would address the public comments BIS received on a March interim final rule that clarified the agency’s controls on radiation hardened integrated circuits and expanded a license exception for certain exports under License Exception GOV, which authorizes certain exports to governments and international organizations (see 2403120017). The agency plans to issue this “final action” in January.

Agenda Highlights

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