Foundational Tech ANPRM to Seek Comment on Relationship With Emerging Tech, Commerce's Borman Says

The Commerce Department’s advance notice of proposed rulemaking (ANPRM) on foundational technologies will ask for public comments on the relationship between foundational and emerging technologies, a concept that is challenging Commerce, according to Commerce’s deputy assistant secretary for export administration Matt Borman. The proposal, which is expected to be released this fall, is proving more challenging than the proposed ANPRM on emerging technologies the agency released last year, Borman said. The foundational notice will ask industries whether emerging and foundational technologies are really “two distinct things,” Borman said, or whether one depends on the other, such as whether foundational technologies are used to create emerging technologies.

“That's a fairly intellectually challenging undertaking,” Borman said during a Nov. 4 panel hosted by Content Enablers and George Mason University.

The question represents a slight departure from the original ANPRM on emerging technologies, which asked for industries -- in their public comments -- to treat “emerging and foundational technologies as separate types of technology.”

The foundational ANPRM has yet to be released despite Commerce officials saying during the summer the notice would be issued within “weeks” (see 1906280057). Borman said foundational controls “conceptually can be harder” than emerging controls and said the agency is still finishing “internal work” on the notice. Commerce still needs to send it to other agencies for comment before it is publicly released, Borman said.

Borman also said the regulations resulting from the information and communications technology and services supply chain executive order are “being finalized.” The order, issued in May, ordered Commerce to release regulations by October, but proposed regulations have not yet been issued. “The development of the regulations is pretty far along,” Borman said. “And we’ll certainly anticipate a lot of public comments once they're out.” The executive order and the regulations’ delay are creating anxiety and uncertainty within the technology and telecommunications industry (see 1910310053)

Candace Goforth, a former policy director at the Directorate of Defense Trade Controls and current managing director of Goforth Trade Advisors, said some companies are struggling with complying with the growing complexity of export control regimes, partly because they don’t fully understand them.

“I think that's something that I do see in companies -- they're a little narrow in what they're looking at because they’re just thinking about ‘what is the transaction that is coming to my desk today?’” Goforth said during the panel, adding that they should be doing “broader thinking.”

She also said that many trade compliance officials struggle with managers who do not involve them enough in business planning. “I don't know how many times I go to companies where trade compliance is more the reactive part,” she said. “They’re not in the business development side, they’re not involved in procurement ... so they aren't there to give a warning flag.”

Goforth said compliance officials are sometimes only brought in toward the end of a business transaction to fill out paperwork and apply for licenses, which she said is a mistake. She said this is made more challenging with the increased activity in the export controls and foreign investment space with the Export Control Reform Act and the Foreign Investment Risk Review Modernization Act, respectively.

“There’s such a broader realm now,” she said. “I don't think people understand, when they identify or try to build up a trade compliance function, just how broad the knowledge base really has to be.”