BIS Regulatory Agenda Includes New Mention of EAR Changes for Hong Kong, Tech 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 (*).