Top Commerce Officials Push Back on More Time for Public Comments on Foundational Tech ANPRM

After more than 25 industry associations urged the Commerce Department to grant more time for comments on its next advance notice of proposed rulemaking for foundational technologies, top Commerce officials said it will consider the request but suggested that U.S. industries have had ample time to prepare comments.

“There’s no surprise that it’s coming,” Rich Ashooh, Commerce’s assistant secretary for export administration, said of the upcoming ANPRM. Nazak Nikakhtar, undersecretary of Commerce for industry and security, agreed, saying companies should have given “quite a bit of thought” to foundational technologies already. “The fact that its been out there for a while, and everybody knows the foundational technology piece is coming, hopefully businesses have given thoughts to their comments,” she said. “So that once we open up for comments, you guys are teed up and are ready to go.”

Nikakhtar’s and Ashooh’s comments at the Bureau of Industry and Security’s annual export controls conference on July 10 came about two weeks after U.S. industries sent a letter to Commerce Secretary Wilbur Ross and requested a 90-day comment and review period for BIS’s upcoming ANPRM (see 1906280022). The letter was signed by several prominent U.S. industry groups, including the Aerospace Industries Association, the National Association of Manufacturers, the Semiconductor Industry Association and the U.S. Chamber of Commerce.

Matt Borman, Commerce’s deputy secretary for export administration, said June 28 the comment period will be about “60 days,” but Nikakhtar and Ashooh declined to give a specific time frame. Nikakhtar said Commerce will consider all extension requests but said the agency is concerned about “opening ourselves up to be inundated with comments. That just makes our process much more difficult.”

“At some point there's got to be a time where we put a stop and take in the comments,” Nikakhtar said. “I know it’s never comfortable, but there has been quite a bit of thought. So we encourage you that once we issue the [Federal] Register notice, to put all of that thought onto paper.”

Nikakhtar said BIS plans to issue the notice on foundational technologies “very, very soon.” She said Commerce wanted to finish evaluating the comments it received on its previous ANPRM on emerging technologies, which it issued in November, before issuing another ANPRM. “We wanted to give ourselves time to absorb the comments … to sort of form how we were going to proceed on foundational technologies,” Nikakhtar said.

BIS also plans to issue its first proposed set of rules for export controls on emerging technologies in “weeks, but not months,” Ashooh said. But both BIS officials acknowledged the process has been “taking a while.” Nikakhtar said Commerce is moving slowly to make sure it is fully “understanding the technologies, understanding the applications” and “going about this in the right way.”

“We understand there’s a lot of eagerness and a need to see our first batch to see how we’re going about the controls,” Nikakhtar said. “The fact that it’s taking a while should give you all comfort that we’re going about this in a very thoughtful way and a very deliberate way … rather than us just going out with blanket controls.”

Ashooh stressed that the upcoming controls will not be a “categorical rule” on broad groups of technologies, but will instead slowly be applied to individual components. “There was a sense that our rulemaking was going to lead to a definition of emerging technologies that would then lead to a categorical rule,” Ashooh said. “That’s not what's happening.” Ashooh said BIS is working on controls on one “basket” of technologies and will continue to issue more controls as they are created. “This process will have no end,” he said. “It will continue as technologies continue.”