Proposed Rule2021-23256
Request for Comments Concerning the Imposition of Export Controls on Certain Brain-Computer Interface (BCI) Emerging Technology
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Published
October 26, 2021
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Abstract
The Bureau of Industry and Security (BIS) maintains controls on the export, reexport and transfer (in-country) of dual-use items and less sensitive military items pursuant to the Export Administration Regulations, including the Commerce Control List (CCL). Certain items that could be of potential concern for export control purposes are not yet listed on the CCL or controlled multilaterally, because they are emerging technologies. Among these items is Brain-Computer Interface (BCI) technology, which includes, inter alia, neural-controlled interfaces, mind-machine interfaces, direct neural interfaces, and brain-machine interfaces. BIS is seeking public comments on the potential uses of this technology, particularly with respect to its impact on U.S. national security (e.g., whether such technology could provide the United States, or any of its adversaries, with a qualitative military or intelligence advantage). This document also requests public comments on how to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications).
Full Text
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<title>Federal Register, Volume 86 Issue 204 (Tuesday, October 26, 2021)</title>
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[Federal Register Volume 86, Number 204 (Tuesday, October 26, 2021)]
[Proposed Rules]
[Pages 59070-59073]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23256]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 211019-0212]
RIN 0694-AI41
Request for Comments Concerning the Imposition of Export Controls
on Certain Brain-Computer Interface (BCI) Emerging Technology
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The Bureau of Industry and Security (BIS) maintains controls
on the export, reexport and transfer (in-country) of dual-use items and
less sensitive military items pursuant to the Export Administration
Regulations, including the Commerce Control List (CCL). Certain items
that could be of potential concern for export control purposes are not
yet listed on the CCL or controlled multilaterally, because they are
emerging technologies. Among these items is Brain-Computer Interface
(BCI) technology, which includes, inter alia, neural-controlled
interfaces, mind-machine interfaces, direct neural interfaces, and
brain-machine interfaces. BIS is seeking public comments on the
potential uses of this technology, particularly with respect to its
impact on U.S. national security (e.g., whether such technology could
provide the United States, or any of its adversaries, with a
qualitative military or intelligence advantage). This document also
requests public comments on how to ensure that the scope of any
controls that may be imposed on this technology would be effective (in
terms of protecting U.S. national security interests) and appropriate
(with respect to minimizing their potential impact on legitimate
commercial or scientific applications).
DATES: Comments must be received by BIS no later than December 10,
2021.
ADDRESSES: You may submit comments, identified by <a href="http://regulations.gov">regulations.gov</a>
docket number BIS-2021-0032 or by RIN 0694-AI41, through any of the
following:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
You can find this advance notice of proposed rulemaking by searching
for its <a href="http://regulations.gov">regulations.gov</a> docket number, which is BIS-2021-0032.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#34644156585d57775b5959515a404774565d471a505b571a535b42"><span class="__cf_email__" data-cfemail="4d1d382f21242e0e2220202823393e0d2f243e6329222e632a223b">[email protected]</span></a>. Include RIN 0694-AI41
in the subject line of the message.
All filers using the portal or email should use the name of the
person or entity submitting the comments as the name of their files, in
accordance with the instructions below. Anyone submitting business
confidential information should clearly identify the business
confidential portion at the time of submission, file a statement
justifying nondisclosure and referring to the specific legal authority
claimed, and provide a non-confidential submission.
For comments submitted electronically containing business
confidential information, the file name of the business confidential
version should begin with the characters ``BC.'' Any page containing
business confidential information must be clearly marked ``BUSINESS
CONFIDENTIAL'' on the top of that page. The corresponding non-
confidential version of those comments must be clearly marked
``PUBLIC.'' The file name of the non-confidential version should begin
with the character ``P.'' The ``BC'' and ``P'' should be followed by
the name of the person or entity submitting the comments or rebuttal
comments. Any submissions with file names that do not begin with a
``P'' or ``BC'' will be assumed to be public and will be made publicly
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For questions on Brain-Computer
Interface technology, contact Dr. Betty Lee, Chemical and Biological
Controls Division, Office of Nonproliferation and Treaty Compliance,
Bureau of Industry and Security, U.S. Department of Commerce, (202)
482-5817, Email:
[[Page 59071]]
<a href="/cdn-cgi/l/email-protection#0f4d6a7b7b7621436a6a4f6d667c216b606c21686079"><span class="__cf_email__" data-cfemail="45072031313c6b09202005272c366b212a266b222a33">[email protected]</span></a>. For questions on the submission of comments,
contact Willard Fisher, Regulatory Policy Division, Office of Exporter
Services, Bureau of Industry and Security, U.S. Department of Commerce,
(202) 482-6057, Email: <a href="/cdn-cgi/l/email-protection#2d7f7d691f6d4f445e0349424e034a425b"><span class="__cf_email__" data-cfemail="d7858793e597b5bea4f9b3b8b4f9b0b8a1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
As part of the National Defense Authorization Act (NDAA) for Fiscal
Year 2019, Public Law 115-232, Congress enacted the Export Control
Reform Act of 2018 (ECRA), 50 U.S.C. 4801-4852. Section 1758 of ECRA
(as codified under 50 U.S.C. 4817) authorizes the Bureau of Industry
and Security (BIS) to establish appropriate controls on the export,
reexport or transfer (in-country) of emerging and foundational
technologies. Pursuant to ECRA, on November 19, 2018, BIS published an
advance notice of proposed rulemaking (November 19 ANPRM) (83 FR
58201). That ANPRM identified Brain-Computer Interface (BCI) technology
as part of a representative list of technology categories concerning
which BIS, through an interagency process, sought public comment to
determine whether there are specific emerging technologies that are
essential to U.S. national security and for which effective controls
can be implemented.
Comments to the November 19 ANPRM on Brain-Computer Interface
Technology
In response to its November 19 ANPRM, BIS received approximately 13
comments related to the potential designation of BCI technology as an
emerging technology. The substance of these comments is summarized in
the following paragraphs.
One respondent noted that BCI technology, although still in the
early stages of development, is currently available in Wassenaar
Arrangement participating countries (including the United States), as
well as in other countries.
Similarly, another respondent indicated that emerging BCI
technology has important applications in human health care and
assistive technologies and that, consequently, overly broad export
controls on such technology could hinder research in these areas. In
addition, a respondent in the aerospace sector stated that overly broad
export controls would discourage information sharing and thereby hinder
BCI research and development projects in the aerospace industry. This
respondent also urged that license exceptions should apply to those
situations involving technological collaboration with our allies.
Another respondent noted that the imposition of export controls on
the representative general categories of technology (including BCI
technology) identified in BIS's November 19 ANPRM would impact the
fields of automotive development (e.g., autonomous driving and
automotive safety), artificial intelligence, advanced materials
development, human-machine interfaces and robotics. This respondent
expressed the concern that the imposition of overly strict export
controls on such technology by the United States could drive future
research and development programs to other technologically
sophisticated countries in Europe, Asia and the Americas that would not
impose unilateral export controls on such technology. As examples of
the possible adverse effect of export controls on such technology, this
respondent cited the impact that the tightening of export controls had
on the U.S. commercial satellite sector and on LiDAR controlled under
ECCN 6A001 or ECCN 6A008.j.2.
One respondent urged that U.S. export controls on BCI technology be
addressed through the establishment of harmonized multilateral
controls. Otherwise, the imposition of export controls on such
technology by the United States could adversely impact future
collaboration with our allies (e.g., foreign companies might become
reluctant to utilize U.S.-origin BCI products or technology if they
were subject to unilateral export controls). This respondent also
recommended that the United States view its national security interests
more narrowly, observing that the United States likely would lose
credibility in multilateral export control forums if it tried to tie
its national security and economic security interests too closely
together. This respondent also asked whether these controls would be
applied, across-the-board, to all countries or if they would vary
depending upon the country of destination. In addition, the respondent
inquired as to whether the de minimis provisions in the Export
Administration Regulations (EAR) would apply, how often the United
States would evaluate and update the scope of these emerging technology
controls, and what additional measures (i.e., other than obtaining
export or reexport licenses) U.S. companies and non-US entities would
be expected to take in order to protect such technology.
Another respondent also warned about the potential harm to U.S.
technological leadership and competitiveness if the United States were
to impose broad unilateral controls on emerging technologies (including
BCI technologies), instead of working with our allies to develop and
implement multilateral controls. This respondent stressed that any
export controls that are imposed on emerging technologies must apply
only to those emerging technologies that are determined to be essential
to U.S. national security (e.g., export controls on such technologies
should address specific U.S. national security concerns, rather than
trade policy issues). In addition, this respondent urged that emerging
technologies should not be controlled unless they are exclusive to the
United States and encompass only core technologies. This respondent
also recommended that U.S. controls should focus primarily on
technology required for ``development,'' rather than technology for
``production'' or ``use.'' This respondent further urged that, to the
extent possible, any future EAR controls on emerging technologies
should be designed to complement the existing controls on the Commerce
Control List and the EAR definitions that apply to similar items, and
not be described in vague terms (e.g., as capable for use with one or
more specified items).
One respondent observed that the digital information field of BCI
technology is quite mature and that, consequently, digital information
technologies should remain unencumbered for the free exchange and
cross-pollination of advancements across borders. In a similar vein,
another respondent stated that, if export controls on quantum computing
and BCI technologies were not properly crafted, these controls could
damage U.S. competitiveness and undermine U.S. technological leadership
by slowing development, limiting resources, reducing market
participation and limiting collaborative opportunities. This respondent
emphasized that, in developing and implementing export controls on such
technologies, an effective partnership among government, industry and
academia would be essential.
Process To Identify and Control Emerging Technology
Under ECRA, emerging and foundational technologies are those
essential to the national security of the United States, but not
described in Section 721(a)(6)(A)(i)-(v) of the Defense Production Act
of 1950 (50 U.S.C. 4565(a)), as amended. Section 1758(a) of ECRA (50
U.S.C. 4817(a)) outlines an interagency process for identifying
emerging and foundational
[[Page 59072]]
technologies. This process considers both public and classified
information, as well as information from the Emerging Technology
Technical Advisory Committee and the Committee on Foreign Investment in
the United States. In identifying specific emerging technologies, this
process also takes into account all of the following:
<bullet> The development of the emerging technologies in foreign
countries;
<bullet> The effect export controls might have on the development
of the emerging technologies in the United States; and
<bullet> The effectiveness of export controls on limiting the
proliferation of the emerging technologies in foreign countries.
In addition, Section 1758(a)(2)(C) of ECRA (50 U.S.C.
4817(a)(2)(C)) requires that the interagency process for identifying
emerging technologies include a notice and comment period.
The Secretary of Commerce must establish appropriate controls on
the export, reexport or transfer (in-country) of technology identified
pursuant to the Section 1758 process. In so doing, the Secretary must
consider the potential end-uses and end-users of emerging and
foundational technologies, and the countries to which exports from the
United States are restricted (e.g., embargoed countries). While the
Secretary has discretion to set the level of export controls, at a
minimum a license must be required for the export of such technologies
to countries subject to a U.S. embargo, including those countries
subject to an arms embargo.
BCI technology has been identified as a technology for evaluation
as a potential emerging technology, consistent with the interagency
process described in Section 1758 of ECRA. Consequently, BIS is
publishing this ANPRM to obtain feedback from the public and U.S.
industry concerning whether such technology could provide the United
States, or any of its adversaries, with a qualitative military or
intelligence advantage.
Fundamentally, BCIs provide a direct communication pathway between
an enhanced or wired brain and an external device, with bidirectional
information flow.\1\ BCIs frequently involve a process in which brain
signals are acquired, analyzed and then translated into commands that
are: (1) Used to control machines; (2) potentially transferred to other
humans; or (3) used for human assessment or enhancement. Medical uses
of BCI technology include replacing or restoring useful function to
people disabled by neuromuscular disorders such as amyotrophic lateral
sclerosis, cerebral palsy, stroke, or spinal cord injury.
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\1\ Krucoff, M.O., Rahimpour, S., Slutzky, M.W., Edgerton, V.R.,
Turner, D.A. (2016), ``Enhancing Nervous System Recovery through
Neurobiologics, Neural Interface Training, and
Neurorehabilitation,'' Neuroprosthetics, 10 (584).
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BCI technology can also be a promising interaction tool for the
public, with many potential applications in multimedia, entertainment
and other fields. This technology will also have potential for military
use in enhancing the capabilities of human soldiers, including
collaboration for improved decision making, assisted-human operations,
and advanced manned and unmanned military operations.\2\
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\2\ Binnendijk, A., Marler, T., Bartels, E.M. (2019), ``Brain-
Computer Interfaces: U.S. Tactical Military Applications and
Implications,'' RAND Report RR-2996-CGRS.
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Although the ability to apply BCI technology remains subject to
certain limitations (e.g., approximately 15-30% of individuals
currently are thought to be unable to produce brain signals robust
enough to operate a BCI), the scientific community is addressing these
limitations through strategies such as: (1) An adaptive machine
learning approach that incorporates neurophysiological and
psychological traits; and (2) the development of more advanced sensors
(e.g., a coordinated network of independent, wireless microscale neural
sensors that are able to gather data from much larger groups of brain
cells than most current BCI systems).
Request for Comments
Consistent with Section 1758(a)(2)(C) of ECRA (50 U.S.C.
4817(a)(2)(C)), this ANPRM provides the public with notice and the
opportunity to comment for the purpose of evaluating BCI technology as
an emerging technology. Consequently, BIS welcomes comments on this
ANPRM that would address, but not necessarily be limited to, the
following questions. If specific BCI systems are discussed as part of
any response to these questions, the public is requested to address the
effectiveness of such systems (e.g., with respect to validation,
assessment, detection of errors and ability to operate, as intended,
for all types of individuals).
(1) What specific uniform standards for BCI technology would need
to be adopted to ensure their application on a global basis (i.e., as
international standards for BCI technology)?
(2) Where does the development of BCI in the United States stand
with respect to other countries (e.g., is the United States on the
forefront of BCI technology development)?
(3) Is BCI technology currently available for commercial use in
certain foreign countries and, if so, where and for what specific
purposes (e.g., have foreign companies already developed devices or
chips for specific commercial applications)?
(4) Has the current stage of development with respect to invasive
and/or non-invasive BCI technology reached the point at which such
technology is ready for commercial production and use?
(5) Is the main progress with respect to non-invasive brain signal
sensors being made in terms of real-time algorithms designed to
transform neural signals into commands (i.e., what is developing
faster: ``software'' (algorithms) or hardware (sensors))?
(6) What impact would the establishment of export controls on BCI
technology have on U.S. technological leadership (i.e., not only in the
field of BCI technology, but overall) and would this impact be
distinctly different if controls were placed primarily on ``software''
as opposed to hardware, or vice versa?
(7) How is the future development of artificial intelligence (AI)
technology or other emerging technologies likely to impact the
development of BCI technology, or vice versa?
(8) What types of ethical or policy issues are likely to arise from
the use of BCI technology (e.g., for medical or military purposes)?
(9) What kinds of risks and benefits currently exist, or are likely
to arise, as a result of the application of BCI technology?
(10) What are the potential advantages or disadvantages of using
invasive and non-invasive BCI chips/sensors and related ``software''
(e.g., algorithms for signal processing) for specific applications? To
what extent would these advantages or disadvantages correspond (or
differ) based upon whether invasive or non-invasive BCI chips/sensors
and related ``software'' were being used?
(11) Are there any BCI technologies that are significantly more
vulnerable than others to cybersecurity threats (e.g., military systems
employing BCI technologies that could adversely impact U.S.
biodefense)?
(12) What is the potential for transmitted BCI data to be hacked or
manipulated to influence the user or machine? Is such data inherently
more vulnerable to hacking or manipulation than other forms of data?
Would the invasive or non-invasive characteristics of BCI data have any
impact on the potential vulnerability of such data?
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In addition to public comments that would assist BIS in evaluating
the status of BCI technology as an emerging technology, BIS encourages
comments that would help it to determine:
(1) Which aspects of BCI technology would be more likely to require
monitoring by the U.S. Government (USG); and
(2) Whether specific USG policies and regulations, as well as
industry standards, need to be established before this technology
becomes widely available for use in commercial applications.
BIS also welcomes comments concerning whether export controls on
BCI technology should be implemented multilaterally (rather than
unilaterally), in the interest of increasing their effectiveness and
minimizing their impact on U.S. industry. As noted above, a number of
respondents who commented on BIS's November 19 ANPRM indicated their
preference for multilateral export controls over unilateral export
controls, because the former typically place U.S. industry on a more
level playing field versus producers/suppliers in other countries. In
this regard, note that Section 1758(c) of ECRA (as codified under 50
U.S.C. 4817(c)) provides that ``the Secretary of State, in consultation
with the Secretary [of Commerce] and the Secretary of Defense, and the
heads of other Federal agencies, as appropriate, shall propose that any
technology identified pursuant to subsection (a) [of ECRA] be added to
the list of technologies controlled by the relevant multilateral export
control regimes.'' Subsection (a) of section 1758 (as codified under 50
U.S.C. 4817(a)) addresses the interagency process for identifying
emerging technologies.
BIS also encourages comments that address issues raised in the
November 19 emerging technology ANPRM public comments (as summarized
above) and any other BCI technology topics that they consider to be
relevant to this inquiry. The information provided by the respondents
in response to this ANPRM will assist BIS in evaluating BCI as a
potential emerging technology for the purpose of formulating export
control policies that will be both effective and appropriate, with
respect to their objective and scope.
Comments should be submitted to BIS as described in the ADDRESSES
section of this ANPRM and must be received by BIS no later than
December 10, 2021.
This rule has been designated a ``significant regulatory action,''
although not economically significant, under Executive Order 12866.
Accordingly, this rule has been reviewed by the Office of Management
and Budget (OMB).
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-23256 Filed 10-25-21; 8:45 am]
BILLING CODE 3510-33-P
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