The Bureau of Industry and Security (BIS) in the coming weeks hopes to release an advance notice of proposed rulemaking (ANPR) to define and add new emerging technologies to be controlled under the Export Administration Regulations (EAR).
BIS Regulatory Policy Division Director Hillary Hess made the statement during a meeting Tuesday of the BIS Regulations and Procedures Technical Advisory Committee (RPTAC).
The planned rulemaking will follow the inclusion of Export Control Reform Act (ECRA) language in broader legislation that President Donald Trump signed into law in August reforming procedures of the Committee on Foreign Investment in the United States (CFIUS).
ECRA specifies that, in order to implement appropriate export controls for emerging technologies, the Commerce secretary may require a license to export, re-export or transfer emerging and foundational technologies subject to EAR that are essential to U.S. national security, and the language directs Commerce to publish regulations in establishing appropriate controls for such transactions.
Currently pending publication in the Federal Register at the Office of Management and Budget (OMB), the referenced advance notice of proposed rulemaking will relate only to emerging technology and not foundational technology, Hess said. Rulemaking on foundational technology will come later.
She added that BIS is considering how to define emerging versus foundational technologies.
“I don’t think you can separate a list of technologies from how you’re defining emerging or foundational, so that’s also important, and we’re soliciting public comment on both ideas … what criteria you’d use,” Hess said.
The public comment period to start upon publication of the advance notice could last anywhere from 30 to 90 days, but there could be a great deal of “time pressure” since BIS is taking an incremental approach with its rulemaking, she said.
Keith Melchers, RPTAC chairman and export compliance officer for Hewlett-Packard Company Inc., said he anticipates a lot of public comments associated with the forthcoming rulemaking, as BIS looks to control technologies that are currently not subject to export controls.
“I’d encourage everyone in the public to look at this very closely,” he said. “I think the ANPR is a great way to start this process, just to get people to brainstorm on it.”
In determining the level of control appropriate for emerging technologies, Commerce must take into account the lists of countries to which U.S. exports are restricted — and the potential end uses and end users of the technology, the ECRA states.
In terms of licensing procedures, the ECRA requires Commerce at a minimum to require a license to export, re-export or transfer emerging or foundational technologies to or in a country subject to an embargo, including an arms embargo, established by the United States.
Broadly, the ECRA requires the White House to establish and, in coordination with Commerce and the departments of Defense, Energy and State as well as other appropriate federal agencies, lead a regular and ongoing interagency process in identifying emerging and foundational technologies essential to U.S. national security.
The interagency process should be informed by several sources, including publicly available information, classified information, information related to transactions reviewed by CFIUS and information provided by BIS advisory committees, according to the legislative language.
During the RPTAC meeting, Hess also noted that BIS is working with other relevant agencies to submit final rule text to OMB to shift items in categories U.S. Munitions List categories I (firearms, close assault weapons and combat shotguns); II (guns and armament); and III (ammunition/ordnance) to the Commerce Control List.
BIS issued its proposed rule for the shift on May 24 and collected comments through July 9.
BIS and other agencies are considering the comments and “trying to prepare a draft that will address those comments and put together some final control text,” Hess said.