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Section 1758 of the Export Control Reform Act of 2018 (ECRA), as codified under 50 U.S.C. 4817, authorizes BIS to establish appropriate controls on the export, reexport or transfer (in-country) of emerging and foundational technologies.  Pursuant to ECRA, BIS has identified Brain Computer Interface (BCI) technology as part of a representative list of technology categories concerning which BIS, through an interagency process, seeks public comment to determine whether this technology represents an emerging technology that is important to U.S. national security and for which effective controls can be implemented.  Specifically, BIS is seeking comments concerning whether this technology could provide the United States, or any of its adversaries, with a qualitative military or intelligence advantage. In addition, BIS is seeking public comments on how to ensure that the scope of any controls that may be imposed on this technology in the future would be effective and appropriate (with respect to their potential impact on legitimate commercial or scientific applications).

Statement of Need:

The Bureau of Industry and Security (BIS) is publishing this ANPRM to obtain public comments on the potential uses of Brain-Computer Interface (BCI) technology, which includes, inter alia , neural-controlled interfaces, mind-machine interfaces, direct neural interfaces, and brain-machine interfaces. On November 19, 2018, BIS published an ANPRM (83 FR 58201) that identified BCI technology as part of a representative list of technology categories concerning which BIS, through an interagency process, sought public comments to determine whether there are specific emerging technologies that are essential to U.S. national security and for which effective controls can be implemented.

Additional input from the public is needed to assist in the interagency process of evaluating BCI technology as a potential emerging technology and to determine if there are specific BCI technologies for which export controls would be appropriate.  The public’s responses to the questions posed in this ANPRM will be considered during the aforementioned interagency process to evaluate BCI technology as a potential emerging technology and 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).

Summary of the Legal Basis:

Section 1758(a) of the Export Control Reform Act (ECRA) of 2018 (50 U.S.C. 4817(a)) outlines an interagency process for identifying emerging and foundational technologies.  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.

Alternatives:

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.

If the interagency process results in a determination that certain BCI technology constitutes an emerging technology, for purposes of section 1758 of ECRA, then BIS is required, pursuant to ECRA to institute export controls on such technology.  However, BIS does have some flexibility 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).

Anticipated Costs and Benefits:

This ANPRM is being published by BIS to assist in evaluating, not only whether certain BCI technology is an emerging technology, but also to obtain information from the public to assist in evaluating how the implementation of export controls on such technology would impact U.S. industry, in terms of both its economic and technological competitiveness.  In short, this ANPRM is intended to assist, as part of the aforementioned interagency process, in evaluating the anticipated costs and benefits of imposing export controls on certain BCI technology.

Risks:

The risks of imposing export controls on certain BCI technology would be to hurt the economic and technological competitiveness of U.S. industry, which is one of the primary reasons that BIS is soliciting comments from the public in accordance with this ANPRM.  There are also risks to U.S. national security and to U.S. industry should such technology fall into the hands of our adversaries.