BIS Regulatory Agenda Includes New Mention of Emerging Tech Rules
The Commerce Department published its spring 2022 regulatory agenda for the Bureau of Industry and Security, including two new mentions of rules that could result in new emerging technology export controls.
A new mention was made of an advance notice of proposed rulemaking that would seek public comments on controls for “instruments for the automated synthesis of peptides,” BIS said. The comments would help inform BIS about whether it should control automated peptide synthesizers, and whether they qualify as emerging technologies under the Export Control Reform Act of 2018, even though BIS in May said it planned to stop differentiating between emerging and foundational technologies for the purpose of ECRA controls (see 2205200017). The agency also will seek feedback on the “potential uses of this technology” and its impact on national security, including whether it could provide the U.S. or other countries a “qualitative military or intelligence advantage.” The agency plans to issue the rule in July.
The agenda includes another new mention, this one of an advance notice of proposed rulemaking that will seek public comments on potential export controls on artificial intelligence items. The agency also will seek feedback on possible end-use controls to “prevent the use of high-end U.S. AI items in human-rights violations.” BIS expects to issue the rule in July.
BIS also mentioned several other new rules, including final actions that will implement export control decisions made during the 2021 Wassenaar Arrangement and Missile Technology Control Regime plenaries. The Wassenaar rule will revise License Exception Adjusted Peak Performance (APP), and the MTCR rule also will revise the eligibility of a license exception, but BIS didn’t specify which one. The agency hopes to issue both rules in September.
BIS continues to mention several other export control rules, including a proposed rule that would add and remove export controls from certain crime-control goods in the EAR, a proposed rule that would suggest new controls over foundational technologies and a final rule to clarify how export controls apply in the context of standards-setting bodies (see 2206150026). The agency expects to issue the first two rules in August and hopes to issue the standards rule this month.
Agenda Highlights
Highlights of the BIS rulemakings that are at the pre-rule, proposed or final stages are below. New items are marked with an asterisk (*).
| Pre-Rule Stage |
|---|
| *Emerging Technology Artificial Intelligence (AI) |
| *Request for Comments Concerning the Imposition of Emerging Technology Export Controls on Instruments for the Automated Chemical Synthesis of Peptides |
| *Section 232 Exclusions Process |
| 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) |
| Review of Commerce Control List for Items Transferred From United States Munitions List Categories IV and XV |
| Foundational Technologies: Proposed Controls; Request for Comments |
| Updating of Country Groups and Removal of Certain License Exceptions |
| Request for Comments Concerning the Imposition of Export Controls on Certain Brain-Computer Interface (BCI) Emerging Technology |
| Proposed Additional General Approved Exclusions for Steel Articles |
| Crime Controls for Human Rights Concerns on the Commerce Control List |
| Final Rule Stage |
| Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML); Corrections |
| Editorial Revisions, Clarifications, and Corrections to the Export Administration Regulations |
| Section 232 Steel and Aluminum Tariff Exclusions Process |
| Information Security Controls: Cybersecurity Items |
| Updated Statements of Legal Authority for the Export Administration Regulations |
| Revisions to the Export Administration Regulations: Implementation of Sanctions on Russia |
| Modification of License Exception Additional Permissive Reexports (APR) |
| Emerging and Foundational Technologies: Implementation of Certain 2021 Wassenaar Arrangement Decisions |
| Additional Protocol Regulations: Establishment of a Mandatory Electronic Submission Requirement for Reports |
| Authorization of Certain "Items" to Entities on the Entity List in the Context of Specific Standards Activities |
| Export Administration Regulations: Corrections and Clarifications |
| Commerce Control List: Controls on Certain Marine Toxins |
| Increasing Transparency of 232 Investigations by Requiring a Public Submission for a Request or Application for an Investigation |
| Commerce Control List: Amendments to Reflect Updates to the Australia Group Common Control Lists |
| Export Administration Regulations: Implementation of Wassenaar Arrangement 2021 Plenary Agreements |
| Termination of 232 Investigations |
| End User Controls for Human Rights Concerns Under the Export Administration Regulations: State Actors and Certain Other End Users |
| Revision of Licensing Requirements of Certain Cameras, Systems, or Related Components |
| Revisions to the Unverified List (UVL) |
| Reducing the Concentration Threshold for Mixtures Containing Chemical Weapons Convention Schedule 2A Chemicals |
| Clarifications of Availability and Expansion of Restrictions on Availability of License Exception Strategic Trade Authorization Under the Export Administration Regulations |
| Export Administration Regulations: Corrections and Clarifications |
| Commerce Control List: Updates Based on the Latest Nuclear Suppliers Group (NSG) Plenary Meetings |
| *Revisions to the Export Administration Regulations Based on 2021 Missile Technology Control Regime Plenary Agreements; and Revisions to License Exception Eligibility |
| *Additions to the Entity List |
| *Implementation of Sanctions Against Russia Under the Export Administration Regulations (EAR) |
| *Implementation of 2021 Wassenaar Arrangement Decisions |
| *Imposition of Sanctions Against Belarus Under the Export Administration Regulations (EAR) |
| *Expansion of Sanctions Against the Russian Industry Sector Under the Export Administration Regulations (EAR) |
| *Addition to the List of Countries Excluded From Certain License Requirements Under the Export Administration Regulations |
| *Imposition of Sanctions on 'Luxury Goods' Destined for Russia and Belarus and for Russian and Belarusian Oligarchs and Malign Actors Under the Export Administration Regulations (EAR) |
| *Additions of Entities to the Entity List |
| *Additions to the List of Countries Excluded From Certain License Requirements Under the Export Administration Regulations (EAR) |
| *Imposition of Restrictions on Exports, Reexports and Transfers (In-Country) to Persons Whose Property and Interests in Property are Blocked Pursuant to Executive Order 14024 |
| *Expansion of Sanctions Against Russia and Belarus Under the Export Administration Regulations (EAR) |
| *Export Administration Regulations: Revisions to Russia and Belarus Sanctions and Related Provisions; Corrections and Clarifications |
| *Expansion of Sanctions Against Russian Industry Sectors Under the Export Administration Regulations (EAR) |
| *Addition of Entities, Revision of Entries, and Removal of Entities from the Entity List |
| *Adoption of Congressional Notification Requirement for Certain Semiautomatic Firearms Exports under the Export Administration Regulations (EAR) |
| *Additions of Entities to the Entity List |