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 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:
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
Category |
Representative Examples |
Biotechnology |
|
Artificial Intelligence (“AI”) and Machine Learning Technology |
|
Position, Navigation, and Timing (PNT) Technology |
N/A |
Microprocessor Technology |
|
Advanced Computing Technology |
|
Data Analytics Technology |
|
Quantum Information and Sensing Technology |
|
Logistics Technology |
|
Additive Manufacturing |
|
Robotics |
|
Brain-Computer Interfaces |
|
Hypersonics |
|
Advanced Materials |
|
Advanced Surveillance Technologies |
|
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