Commerce Plans to Propose Foundational Technology Rulemaking Notice in Coming Weeks
The Commerce Department plans to issue an advance notice of proposed rulemaking for export controls of foundational technologies in the coming weeks, Commerce officials said. The notice will be published “quite soon” and in “weeks, not months,” said Rich Ashooh, Commerce's assistant secretary for export administration, speaking at a June 4 Bureau of Industry and Security Regulations and Procedures Technical Advisory Committee meeting. Hillary Hess, director of Commerce’s regulatory policy division, was more reserved in her prediction, saying she is unsure exactly when the notice will be released but assuring the committee it is the next export-related notice that BIS plans to publish. “It is in the process now,” Hess said at the meeting. “We’re trying to prepare it.”
The announcement came less than two weeks after BIS updated the Commerce Control List with five new emerging technologies on May 23 (see 1905220051). It also came about three months after Hess and other Commerce officials said BIS was behind in publishing controls on emerging and foundational technologies due to the recent partial federal government shutdown and the large volume of public comments BIS had received (see 1903110047). But Ashooh suggested Commerce is back on track, saying it has been “gratifying” to see the public attention the new export controls have received. “It’s the kind of interest that we hoped we would see,” he said. Ashooh said BIS’s plan is to stagger notices about emerging and foundational technologies, and Hess said they plan to release the rulemaking notice on foundational technologies before any more emerging technologies are added to the CCL.
Ashooh said he will try to give “a little more” time for public comments on the foundational technology notice but added that it may not be possible. When Ashooh last asked Commerce Secretary Wilbur Ross for a public comment extension, Ross “very grudgingly” agreed, Ashooh said. “It’s a fast-moving administration,” he said, “and I’m sure that will still apply.” While Ashooh said the rulemaking notice for foundational technologies will be a “very different thought process” than the previous notice for emerging technologies, it will offer companies and industry leaders another opportunity to communicate issues or thoughts with BIS. “Those of you who provided comments on emerging, whatever you didn't get to say in emerging, you can say in foundational,” Ashooh said. Hess said BIS only has to wait for the notice of proposed rulemaking to be reviewed by the Office of Management and Budget, which can take up to 90 days. But Hess said usually the OMB “doesn’t take that whole time.”
Commerce will not provide straightforward definitions of foundational or emerging technologies in any upcoming notice, Ashooh and Hess said. “Emerging technologies defies a specific definition,” Ashooh said, adding that the technologies that fit under the emerging technologies category will be defined “on a rolling basis” as they’re proposed. Hess said BIS will not try to place rigid definitions on any technology category but instead try to “identify the technical parameters.” “You probably will not see something saying, ‘OK, this is our definition of emerging technologies, and it’s going to catch these fourteen categories,’” Hess said. “I think you will start seeing us poking at different areas of technologies that we think could be emerging.”
Hess did say, however, that Commerce looks for a common thread when identifying emerging or foundational technology exports that may be candidates for the CCL: They should be able to be proposed for multilateral control. Hess said Commerce used that strategy in its May 23 notice regarding additions to the CCL that stemmed from changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies. “What we did here was look at stuff that we think kind of fits into the emerging technologies basket but is already proposed for multilateral control,” Hess said, saying the product met the criteria if it was “something that's got parameters, is enforceable and would be accessible to our multilateral partners.” Hess pointed to the addition of “air launch platforms,” which added export controls to specially designed aircraft modified to “be air-launch platforms for space launch vehicles,” BIS said. “I think that can pretty clearly be described as an emerging technology, Hess said. “And it was already proposed for control multilaterally.”