Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Washington, D.C.

core/separator

core/heading

Proposed rule would prohibit the import and sale of connected vehicles equipped with certain hardware or software developed, manufactured, or supplied by Chinese or Russian-affiliated entities.

core/list-item

Proposed rule would also prohibit the sale of connected vehicles manufactured by Chinese or Russian OEMs.

Prohibitions would take effect between 2027 and 2030.

If implemented, manufacturers and importers would be required to submit annual declarations of conformity.

BIS proposes to grant general authorizations for low-volume manufacturers or vehicles for testing, research, or show/display.

Public comments on the proposed rule are due by October 28, 2024.

core/list

On September 23, 2024, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) released a <a href="https://public-inspection.federalregister.gov/2024-21903.pdf">notice of proposed rulemaking</a> (NPRM) related to the import and sale of connected vehicles. The NPRM proposes to prohibit the import or sale of connected vehicles that are manufactured by entities owned by, controlled by, or subject to the jurisdiction or direction of the People’s Republic of China (PRC) or Russia. The NPRM also proposed to prohibit the sale or import of connected vehicles that contain “vehicle connectivity systems” or certain related software that are designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia.

contentpilot/introduction

BIS’s notice follows an <a href="https://www.federalregister.gov/documents/2024/03/01/2024-04382/securing-the-information-and-communications-technology-and-services-supply-chain-connected-vehicles">advanced notice of proposed rulemaking</a> published by the BIS on March 1, 2024. The BIS is seeking comments on the new NPRM from interested parties within 30 days from the date of publication of the NPRM in the Federal Register. The NPRM is scheduled to be published on September 26, 2024, and the comments will thus be due on October 28, 2024.

core/paragraph

In a <a href="https://www.bis.gov/press-release/commerce-announces-proposed-rule-secure-connected-vehicle-supply-chains-foreign">press release</a>, BIS reiterated its finding that certain technologies originating from the PRC or Russia present an undue risk to U.S. critical infrastructure and those who use connected vehicles. “Cars today have cameras, microphones, GPS tracking, and other technologies connected to the internet. It doesn’t take much imagination to understand how a foreign adversary with access to this information could pose a serious risk to both our national security and the privacy of U.S. citizens. To address these national security concerns, the Commerce Department is taking targeted, proactive steps to keep PRC and Russian-manufactured technologies off American roads,” said U.S. Secretary of Commerce Gina Raimondo.

VCS Hardware and Software and ADS Software: BIS’s proposed rule would prohibit the importation and sale of certain “vehicle connectivity systems” (VCS) hardware (as a component or installed in completed vehicle), as well as completed connected vehicles that incorporate “covered software”—i.e., software-based components that support the function of the VCS or automated driving systems (ADS) at the vehicle level—to the extent such hardware or software components were designed, developed, manufactured, or supplied by persons owned by controlled by, or subject to the jurisdiction or direction of the PRC or Russia.

PRC or Russian Connected Vehicles: The proposed rule would also prohibit manufacturers of complete connected vehicles owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia from selling their connected vehicles that incorporate VCS hardware or covered software systems in the United States.

BIS proposes to implement: (1) prohibitions against the importation or sale of complete connected vehicles equipped with covered software starting with Model Year 2027; (2) prohibitions against the sale of complete connected vehicles equipped with covered software or VSC hardware by OEMs with sufficient nexus to the PRC or Russia starting with Model Year 2027; and (3) prohibitions against the VSC hardware importers starting with Model Year 2030, or January 1, 2029.

The agency proposes to use the following key terms:

Connected Vehicles: These include vehicles driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, that integrate onboard networked hardware with automotive software systems to communicate via dedicated short-range communication, cellular telecommunications connectivity, satellite communication, or other wireless spectrum connectivity with any other network or device. The proposed scope of the rule would encompass all types of vehicles designed for use on public roads, including passenger vehicles, motorcycles, buses, small and medium trucks, and class 8 commercial trucks.  Conversely, it would not apply to vehicles designed for off-road use, such as agricultural equipment, or mining equipment.

Vehicle Connectivity Systems: means a hardware or software item for a completed connected vehicle that has the function of enabling the transmission, receipt, conversion, or processing of radio frequency communications at a frequency over 450 megahertz.  These include various systems that are commonly found in modern vehicles, such as telematics control units, cellular modems and antennas, and other automotive components that enable vehicles access to external data sources, facilitate vehicle-to-vehicle communication, or provide enhanced services to users through connectivity options.

Vehicle Connectivity Systems Hardware: means the following software-enabled or programmable components and subcomponents that support the function of Vehicle Connectivity Systems or that are part of an item that supports the function of Vehicle Connectivity Systems: microcontroller, microcomputers or modules, systems on a chip, networking or telematics units, cellular modem/modules, Wi-Fi microcontrollers or modules, Bluetooth microcontrollers or modules, satellite navigation systems, satellite communication systems, other wireless communication microcontrollers or modules, and external antennas. VCS hardware does not include components that do not contribute to the communication function of VCS hardware (e.g., brackets, fasteners, plastics, and passive electronics).

VCS Hardware Importer: means a U.S. person importing VCS hardware for further manufacturing, integration, resale, or distribution or importing a connected vehicle with VCS hardware already installed.

Automated Driving Systems: These include hardware and software that, collectively, can perform the entire dynamic driving task for a completed connected vehicle on a sustained basis, regardless of whether it is limited to a specific operational design domain (ODD).

Covered Software: These include software-based components, in which there is a foreign interest, executed by the primary processing unit of the respective systems that are part of an item supporting Vehicle Connectivity Systems or Automated Driving Systems at the vehicle level. Covered software does not include firmware or open-source software that can be freely used/modified by anyone.

Person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary: BIS’s proposed definition of this term would encompass any person who is acting on behalf of a state-owned enterprise of the Chinese or Russian governments, any person who is a citizen or resident of the PRC or Russia, or any entity with a principal place of business in, headquartered in, incorporated in, or otherwise organized under the laws of the PRC or Russia. Further, BIS’s proposed definition would apply if an entity is organized under the laws of the United States or another country outside of the PRC or Russia, if the entity is owned or controlled by a person with sufficient nexus to PRC or Russia, including through the ownership of a majority or a dominant minority of the voting interests, board representation, proxy voting, a special share, contractual agreements, or formal/informal arrangements to act in concert, to determine important matters for the entity.

To facilitate compliance with the rule, BIS proposes to require a declaration of conformity from each VCS hardware importer and connected vehicle manufacturer attesting that they have not knowingly engaged in a prohibited transaction both annually and any time there is a material change that makes a prior declaration inaccurate. The declarations of conformity would also require the submitter to provide a hardware of software bill of materials, as appropriate, and a description of the due diligence efforts taken to ensure that the vehicle or the hardware, as appropriate, does not contain VCS hardware or covered software designed, developed, manufactured, or supplied by a person with sufficient nexus to the PRC or Russia. Any person who engages in a prohibited transaction and submits a false or fraudulent declaration of conformity to BIS may be subject to civil and criminal penalties. According to the proposed rule, VCS hardware importers and connected vehicle manufacturers can request an advisory opinion from the BIS to determine whether a prospective transaction is prohibited by the rule.

The proposed rule also contains various general authorizations allowing eligible companies to engage in otherwise prohibited transactions. The general authorizations are limited to: (a) connected vehicle manufacturers or VCS hardware importers that produce less than 1,000 units in a model year; (b) complete connected vehicles equipped with covered software or VCS hardware that would be used less than 30 calendar days in any calendar year; (c) complete connected vehicles equipped with covered software or VCS hardware that would be used solely for the purpose of display, testing, or research, and will not be used on public roadways; or (d) completed connected vehicles equipped with covered software or the VCS hardware imported solely for purposes of repair, alteration, or competition off public roads and will be reexported within one year from the time of import.

The proposed rule would allow companies to request specific authorizations for engaging in otherwise prohibited transactions. A specific authorization would be granted only if BIS determines that the otherwise prohibited transaction does not present an undue or unacceptable risk to U.S. national security. As a condition of approval, however, BIS may impose certain requirements and mitigation measures upon the VCS hardware importers and connected vehicle manufacturers seeking to proceed with the proposed transactions.

Interested parties can comment on all aspects of the proposed rule. However, BIS is specifically seeking feedback on certain key areas. These include the scope of the proposed prohibitions and whether additional items, such as hardware or software components of Advanced Driver-Assistance System (ADAS) and hardware components of ADS, should also be restricted (ADS software is already restricted in the NPRM).

If adopted, the proposed rule will likely have a significant impact on automotive supply chains. The broad prohibitions, as noted by BIS, will apply to nearly all new vehicles sold in the United States, with very few exceptions. OEMs owned or controlled by Chinese persons or entities, or OEMs or Tier 1 suppliers relying on Chinese hardware or software for their vehicle connectivity systems or automated driving systems, will likely need to reconfigure their supply chains.&nbsp;The proposed rule may also lead to divergence between models for the US market and other global markets.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2024/09/U.S.-Commerce-Department-Proposes-Ban-on-Connected-Vehicles-Using-Chinese-or-Russian-Harware-and-Sofware.pdf

U.S. Department of Commerce Proposes Ban on Connected Vehicles Using Chinese or Russian Hardware and Software

Services