Opportunity to Comment on Emerging Technologies Subject to Future Export and Investment Restrictions

The Department of Commerce’s Bureau of Industry and Security (BIS) issued an Advance Notice of Proposed Rulemaking (ANPRM or the “Notice”) on November 19, 2018, concerning the list of “emerging and foundational technologies” that BIS was tasked to identify under the Export Control Reform Act of 2018 (ECRA). The concept of “emerging and foundational technologies” is central not only to ECRA, under which such technologies may be subject to new or additional export licensing requirements, but it is also central to recent reforms to the Committee on Foreign Investment in the United States (CFIUS), under which foreign investments in such technologies may be subject to enhanced requirements.

The key takeaways of the Notice are as follows:

• The Notice does not identify specific technologies to be controlled under the new “emerging and foundational technologies” designation. Rather, it solicits public comment on how to define and identify one component of this list—emerging technologies—as well as whether to treat foundational technologies as a separate component in future rulemaking.
• BIS also is not seeking to expand jurisdiction over technologies not currently subject to the Export Administration Regulations (EAR), including technology or software arising during “fundamental research”—research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community without restrictions for proprietary or national security reasons.
• When the final version of the “emerging and foundational technologies” list is released, it will be immediately relevant to the recently established CFIUS pilot program, as these technologies will be added to the list of “critical technologies” potentially subject to the pilot program’s mandatory CFIUS filing requirements.
• Public comments on the specific issues outlined in the Notice are due by December 19, 2018.

The Notice identifies broad categories of “emerging technologies” subject to the EAR. These technologies currently are controlled under the EAR only for limited purposes: for export to embargoed countries, countries that are designated as supporters of international terrorism, and restricted end uses or end users. BIS is seeking public comment on whether certain technologies within these categories are important to U.S. national security, and therefore warrant additional controls that can be implemented without negatively impacting U.S. leadership in these sectors.

The Notice specifically requests public comment on the following issues:

1. How to define emerging technology to assist identification of such technology in the future;
2. Criteria to apply to determine whether there are specific technologies within these general categories that are important to U.S. national security;
3. Sources to identify such technologies;
4. Other general technology categories that warrant review to identify emerging technologies that are important to U.S. national security;
5. The status of development of these technologies in the United States and other countries;
6. The impact specific emerging technology controls would have on U.S. technological leadership; and
7. Any other approaches to the issue of identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.

The public comment period provides companies and investors an opportunity to shape future export controls applicable to emerging and foundational technologies. In doing so, the Notice acknowledges the important role that companies and investors play in defining and describing the status of the development of these technologies. Perhaps more importantly, the Notice enables key players in the relevant industries to advise BIS and CFIUS on the impact that future restrictions on the export of these technologies, and foreign investment in U.S. technology companies, would have on continued U.S. technological leadership.

Representative Emerging Technology Categories