BIS 'Having Trouble' Identifying Specific Emerging Tech, Official Says
Amid rising pressure from Congress, a Bureau of Industry and Security official said the agency is struggling to identify specific emerging technologies for potential export controls and urged industry and academia for more help. Senior BIS official Thea Kendler said the suggestions she has received since her December confirmation (see 2201050023) are too broad as BIS looks to introduce new controls under the Export Control Reform Act.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“I'm not quite at the stage of begging, but I think I'll be there soon,” Kendler said during an April 8 Emerging Technology Technical Advisory Committee meeting. “Please help us understand where we need to be looking for emerging technologies.”
Although BIS has released 38 emerging technology controls since ECRA was signed into law in 2018, a bipartisan congressional commission said last year the agency has “failed” to carry out its export control responsibilities over emerging and foundational technologies (see 2106020024), and in November suggested Congress create a new office in the White House to work on the controls (see 2111170064). Lawmakers also have threatened to take away BIS’s ECRA authority, citing its lack of controls over any foundational technologies (see 2010010020 and 2110250035). BIS expects to issue its first set of foundational technology controls “soon” (see 2202100026).
Kendler, who recently traveled to California to discuss emerging technologies with experts at Stanford University's Hoover Institution, said she needs more specific input from industry. “I'm really having trouble finding people, institutions, organizations to tell us about specific emerging technologies,” said Kendler, BIS's assistant secretary for export administration. “I'm not getting the specific information that we need to be able to appropriately amend our regulations.”
Aside from working with national labs and the Defense Department, BIS is hoping for more information from its advisory committees, Kendler said. “We need your help in identifying sources,” she told the ETTAC. “If you can't help us identify specific technologies, then at least please tell us who can.”
Although some lawmakers have suggested moving the ECRA export control authority to a different agency, others say BIS is best suited to handle the mandate, especially because it already has the infrastructure and connections with industry to implement the controls (see 2204050059). “There's a reason export controls are housed in the Commerce Department, and that is because of our connection to you in industry,” Kendler said. “We are able to hear from you and understand market changes and dynamics and innovation in a way that no one else in the U.S. government can.”
Kendler also stressed that the agency isn’t looking to “irrespectively, senselessly control technology for the sake of controlling technology,” but instead wants to “protect U.S. industry” by identifying U.S. innovation that may be “vulnerable to foreign actors.” She said the ETTAC should help more with this mission.
“I don't want to minimize the role that you all play," she told the ETTAC, adding that it has the "potential" to "really feed export control policy in a way that I can then carry into my international meetings, my multilateral discussions and plurilateral discussions, so that we are maintaining a level playing field and keeping our eye on the innovations that can affect national security all at once.”