Commerce Still Unsure About Timeline for Emerging Tech Controls, Foundational Tech ANPRM, BIS Official Says

The Commerce Department still does not have a timeline for releasing its next set of controls on emerging technologies and its advance notice of proposed rulemaking for foundational technologies, despite expectations from top officials that both would be published before 2020, a Bureau of Industry and Security official said. “I would have thought that they would be out earlier,” said Hillary Hess, director of BIS’s regulatory policy division, speaking during a Feb. 4 Sensors and Instrumentation Technical Advisory Committee meeting. “I think everybody would like to see them come out, but I’m not sure how long it’s going to take. I’m having trouble getting a bead on it myself.”

Interagency working groups are still reviewing the proposed emerging technology controls, which include potential restrictions on exports of artificial intelligence and robotics items, Hess said. Although BIS published a January interim final rule that placed export controls on geospatial imagery software (see 2001030024), that rule stemmed from an existing Export Administration Regulations process in place within Commerce since 2012 and did not arise from the emerging technology working groups, Hess said. “None of [the working group] rules have been published yet,” she said. Hess also said the ANPRM for foundational technologies is still in an internal review stage within Commerce.

Several top Commerce officials, including Hess (see 1909030037) and Matt Borman (see 1910290062 and 1911200045), Commerce’s deputy assistant secretary for expert administration, said proposed rules on emerging technologies and the foundational technology ANPRM would be released in 2019. “I thought they were moving faster than they were,” Hess said. “I’m not sure how to estimate it, especially already having been mistaken once.”

Since releasing its ANPRM on emerging technologies in November 2018, BIS has released two related rules: a rule in May that controlled a set of items previously agreed to at the 2018 Wassenaar Arrangement plenary meeting (see 1905220051) and the January rule on geospatial imagery software. Despite BIS only releasing two rules in more than a year, which has caused frustration among BIS officials and elicited concern from industry (see 1911070014), Hess stressed that the agency is working hard on the effort.

“They’re moving through internal BIS, internal Department of Commerce and interagency deliberations in various stages … there is work ongoing,” Hess said. “People are looking at a lot of different aspects of them, so I’m not exactly sure when they will come out.”

Hess said BIS intends to propose the control on geospatial imagery software to Wassenaar, but added that it is too early to tell whether BIS will seek to propose controls on foundational technologies to multilateral bodies or whether the agency will first propose them unilaterally. BIS is still formulating how to construct the ANPRM to best “solicit” comments, Hess said. “I think it’s broader than saying, ‘OK, well we're going to start at unilateral and go to multilateral,” she said. “We’re trying to have some questions in there just to give people something to shoot at.” Hess expects the notice to be “really super broad.”