Commerce Regulatory Agenda Includes Plans to Add to Entity List, Finalize New Filing Requirements

The Commerce Department published its spring 2023 regulatory agenda for the Bureau of Industry and Security and the Census Bureau, including new rules that will add more entities to the Entity List and finalize new export filing requirements.

The BIS agenda mentions several new rules, including a final rule the agency had hoped to issue in June that would amend the Export Administration Regulations by adding new parties to the Entity List for “acting contrary to the national security or foreign policy interests” of the U.S. Another final rule would correct the EAR to fix “inadvertent errors to two recent BIS Federal Register publications.”

The agency continued to mention several other notable rules, including a long-awaited proposed rule, due in November, that would clarify the definition of a routed export transaction (see 2209130034 and 2006020049). The agenda also said BIS had planned to finalize its Oct. 7 China-related semiconductor export controls in June (see 2210070049), which could set new restrictions on a broader set of artificial intelligence-related chips (see 2306290048).

The agenda also mentions a proposed rule, due in October, to set new export controls on Section 1758 emerging or foundational technologies; a proposed rule due in October to clarify restrictions on certain exports of aircraft, vessels, installations or facilities located in certain international or foreign territorial waters or ports; and a proposed rule due in September that could add and remove certain items controlled for crime control reasons on the Commerce Control List.

Also included is a proposed rule, due in August, that could lead to new export controls on brain-computer interface technologies. BIS in 2021 sought feedback on the possibility of controlling exports of BCI technologies (see 2110250011), but was told by tech companies, universities and disability-rights advocates that restrictions could stifle U.S. competitiveness and slow academic research (see 2201100010 and 2302170030).

Census’ agenda includes a new mention of a rule to finalize a new proposed data element in AES for shippers exporting goods classified under U.S. Munitions List Category XXI (see 2304260047). The agency had planned to update AES with the new filing requirement in May but reversed those plans to give it time to assess public comments on the proposed change (see 2305100059). Census said the rule will also make “remedial changes” to its Foreign Trade Regulations by updating International Traffic in Arms Regulations references in two existing data elements: the Directorate of Defense Trade Controls Significant Military Equipment Indicator and the DDTC Eligible Party Certification Indicator. Census expects to issue the rule in September.

Census’ agenda continues to mention a rule that would finalize its proposed country of origin reporting requirement in the Automated Export System. Census proposed the new data element in 2021, saying it would help the U.S. better collect foreign trade statistics by requiring U.S. exporters of foreign-produced goods to declare the origin for their item in AES (see 2112140033). The agency received mostly opposing comments on the proposal, with trade groups saying the change could lead to costly compliance challenges (see 2203160026 and 2301230008). Census said it had hoped to issue the final rule in June.

Agenda Highlights

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