BIS Sends Another Wassenaar Final Rule to OMB

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced yesterday that it had received a direct final rule from the DOC’s Bureau of Industry and Security on “Emerging Technology: Implementation of Certain 2021 Wassenaar Arrangement Decisions”.

According to the Fall 2021 Unified Agenda entry for this rulemaking:

“The Bureau of Industry and Security (BIS) maintains, as part of its Export Administration Regulations (EAR), the Commerce Control List (CCL), which identifies certain items subject to Department of Commerce jurisdiction.  This final rule revises the CCL, as well as corresponding parts of the EAR, to implement certain changes made to the Wassenaar Arrangement List of Dual-Use Goods and Technologies (WA List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement, or WA) at the December 2021 WA Plenary meeting.  The Wassenaar Arrangement advocates implementation of effective export controls on strategic items with the objective of improving regional and international security and stability.  This final rule implements multilateral controls on recently developed or developing technologies, which were identified by the WA December 2021 WA Plenary Meeting in a manner contemplated by [§1758 (50 USC 4817) of] the Export Control Reform Act of 2018 (ECRA) [PL 115-232] to identify emerging technologies that are essential to U.S. national security.  This rule harmonizes the CCL with the WA December 2021 Plenary Meeting decisions that pertain to these technologies.  The inclusion of the technologies in this final rule is consistent with the requirements of ECRA and the decision of the WA to add such technologies to its control lists, thereby making exports of such technologies subject to multilateral control.  As these technologies are recently developed or developing technologies that are essential to the national security of the United States, early implementation of the applicable WA December 2021 Plenary agreements is warranted.  The remaining WA 2021 Plenary agreements will be implemented in a separate rule.”

The language of §4817 is broad enough to include just about any emerging technology that someone could determine to be critical to the security of the United States. It could certainly include cybersecurity related emerging technologies. We will have to wait and see what technology is included in this rulemaking. That should not cause any problems (SIGH).

BIS is in a tough place here. They are tasked with writing rules to implement these Wassenaar agreement quickly so that they can go into effect here when the rest of the world puts them into effect. Unfortunately, this has come back to bite BIS in uncomfortable places in the past. It may do so again here.