BIS Requests Public Comment on Emerging Technologies to be Subject to Increased Export ControlsNovember 21, 2018 – Legal Alerts
On Nov. 19, 2018, the Bureau of Industry and Security (BIS) of the U.S. Department of Commerce issued an Advance Notice of Proposed Rulemaking requesting public comment on criteria for identifying emerging technologies essential to U.S. national security that would be subject to increased export controls. With this Advance Notice, BIS takes a step toward implementing increased export controls on “emerging and foundational technologies” called for in the Export Control Reform Act of 2018 (ECRA), which became law on Aug. 13, 2018. BIS is leading this interagency process to develop proposed new rules with new Export Control Classification Numbers (ECCNs) on the Commerce Control List (CCL) for these technologies.
Identifying emerging and foundational technologies will also help define the expanded scope of the Committee on Foreign Investment in the United States (CFIUS) review process. The Foreign Investment Risk Review Modernization Act (FIRRMA), which also became law on August 13, 2018, reforms this review process and defines a key term, “critical technologies,” to include “emerging and foundational technologies” as defined in the ECRA. FIRRMA then expands the scope of foreign investment transactions within CFIUS’ jurisdiction to include, inter alia, non-controlling investments in U.S. businesses involving “critical technologies.” Furthermore, pursuant to FIRRMA, CFIUS has already instituted a pilot program mandating a filing for certain foreign investments in companies involving “critical technologies.”
Under the ECRA, emerging and foundational technologies are those that are (1) essential to national security, and (2) not described in Section 721(a)(6)(A)(i)–(v) of the Defense Production Act of 1950. The Advance Notice is directed to identifying emerging technologies essential to national security that could, for example, have potential applications to conventional weapons, intelligence collection, weapons of mass destruction, or terrorism, or that could otherwise provide a military or intelligence advantage. The Advance Notice seeks comment on emerging technologies within 14 representative technology categories:
(2) Artificial intelligence (AI) and machine learning (e.g., genetic computation, computer vision, decision, speech, audio and video manipulation, AI chipsets),
(3) Position, Navigation, and Timing (PNT) technology,
(4) Microprocessor technology,
(5) Advanced computing technology (e.g., memory-centric logic),
(6) Data analytics technology,
(7) Quantum information and sensing technology,
(8) Logistics technology (e.g., mobile electric power, simulation, total asset visibility),
(9) Additive manufacturing (e.g., 3D printing),
(10) Robotics (e.g., micro-robotic systems, swarming technology, robot compliers),
(11) Brain-computer interfaces,
(12) Hypersonics, (e.g., flight control algorithms, propulsion technologies, thermal protection),
(13) Advanced materials, and
(14) Advanced surveillance technologies, (e.g., faceprint and voiceprint technologies).
BIS requests comment not only for the criteria for identifying these emerging technologies, but also on how to regulate these technologies, seeking comment, inter alia, about the status of development of these technologies in other countries and the impact export controls would have on U.S. technological leadership. The period for public comment closes on Dec. 19, 2018. BIS will then use these comments in the interagency process to define emerging technologies and consider end-uses, end-users, and countries to which exports are restricted when preparing proposed new rules with controls on export, reexport, and transfer of identified emerging technologies. At minimum, BIS anticipates it will require a license for exporting emerging technologies to be identified to countries under a U.S. embargo, including countries under an arms embargo, such as China.