Emerging Tech Proposed Rules May Not Come Before 2020, BIS Official Says

The Commerce Department Bureau of Industry and Security's upcoming set of proposed rules on emerging technologies may not be published until early next year, another sign of the delay that has plagued the rules since Commerce first announced them more than a year ago. Commerce has three emerging technology rule proposals in “various stages of clearance,” Hillary Hess, director of the BIS Regulatory Policy Division, said during a Dec. 10 Regulations and Procedures Technical Advisory Committee meeting. The agency hopes to publish one proposal before the end of the year, Hess said, but urged committee members to take any prediction with “at least a handful of salt.”

“It’s very fraught,” she said. “There’s not a lot of year left, but it’s still theoretically possible.”

In July, Rich Ashooh, Commerce’s assistant secretary for export administration, said the proposed rules would be published in “weeks, not months” (see 1907100044). And in October, Matt Borman, Commerce deputy assistant secretary for export administration, said the agency planned to release the rules within the “next few weeks” (see 1910290062). The delay has frustrated BIS officials, who are working through a complicated set of controls, a slow interagency review process, a lack of clear messaging from the Trump administration and an increasingly impatient industry (see 1911070014). Congress has also pushed back on the delay, with two senators saying in a November letter to Secretary Wilbur Ross that Commerce has been “slow” to complete the process (see 1911190042).

The delay has also caused Commerce to push back its advance notice of proposed rulemaking on foundational technologies, a separate BIS effort to restrict exports of technologies that are widely available but are not yet controlled. BIS originally planned to issue that notice in September (see 1909060041).

The foundational technology notice is “running a little bit behind” Commerce’s work on emerging technology, Hess said. She called the delays a “snapshot” of how timelines for Commerce regulations can sometimes become muddled. “You think it’s about to go out and then all of the sudden it doesn't, and then something that was further back moves up,” she said. “So that’s just one of the issues with predicting timelines.”

The ANPRM for emerging technologies, published in November 2018, requested industry comments on potential controls for 14 broad categories of technologies, including robotics and artificial intelligence. Speaking during the Dec. 10 committee meeting, Ashooh defended Commerce’s decision to ask for comments on “very broad” categories despite the notice spiking industry fears of sweeping, overbroad export restrictions. “We took a lot of -- I don’t want to call it heat -- but there was a lot of anxiety,” Ashooh said.

After reading industry comments, Ashooh and other Commerce officials stressed to trade groups and exporters that the agency planned to control only narrow slices of technology. “It was almost like a Rorschach test,” Ashooh said. “They saw A.I., and what we heard from people was, generally speaking, what they feared the most.” Although that approach increased industry anxiety, Ashooh said it helped Commerce understand industry concerns to “see what really mattered.” Commerce still internally debates how broadly to write its ANPRMs, Ashooh said. “How much do you cite and get out there for comment, and how much do you leave to the imagination?” he said. “That’s a struggle.”

Hess also stressed the controls will be limited. “We're not trying to just throw a broad blanket control on those 14 [categories] that we mentioned in the advance notice of proposed rulemaking,” she said. “We're trying to propose something that is specific enough that you can take it to a multilateral body and negotiate it.”