Commentary

Commerce Starts to Identify and Control Emerging Technologies with CFIUS Implication

On November 19, the Commerce Department’s Bureau of Industry and Security (“BIS”) published an Advance Notice of Proposed Rulemaking (“Notice”) seeking public comments on the process for implementing controls on export, reexport and in-country transfer of “emerging technologies,” as required by the Export Control Reform Act of 2018.  The controls will significantly alter the export control landscape for R&D work and technology transfers.  The new controls could also require government review of foreign investments in high tech industries under a pilot program established by the Committee on Foreign Investment in the United States (“CFIUS”) on November 10.

The BIS seeks public comments by December 19 on various aspects of controlling emerging technologies, including: (1) the criteria for identifying emerging technologies that are essential for U.S. national security, (2) the status of development of these technologies in the United States and other countries, (3) the impact specific emerging technology controls would have on U.S. technological leadership, and (4) alternative approaches to identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant export controls.  The Notice provides the following representative general categories of technologies under consideration:

  • Biotechnology (e.g., nanobiotechnology, synthetic biology, genomic and genetic engineering, neurotech).
  • Artificial intelligence (AI) and machine learning technology (e.g., neural networks and deep learning, evolution and genetic computation, reinforcement learning, computer vision, expert systems, speech and audio processing, natural language processing, planning, audio and video manipulation technologies, AI cloud technologies, AI chipsets).
  • Position, Navigation, and Timing (PNT) technology.
  • Microprocessor technology (e.g., systems-on-chip, stacked memory on chip).
  • Advanced computing technology (e.g., memory-centric logic).
  • Data analytics technology (e.g., visualization, automated analysis algorithms, context-aware computing).
  • Quantum information and sensing technology (e.g., quantum computing, quantum encryption, quantum sensing).
  • Logistics technology (e.g., mobile electric power, modeling and simulation, total asset visibility, or distribution-based logistics systems).
  • Additive manufacturing (e.g., 3D printing).
  • Robotics (e.g., micro-drone and micro-robotic systems, swarming technology, self-assembling robots, molecular robotics, robot compliers, smart dust).
  • Brain-computer interfaces (e.g., neural-controlled interfaces, mind-machine interfaces, direct neural interfaces, brain-machine interfaces).
  • Hypersonics (e.g., flight control algorithms, propulsion technologies, thermal protection systems, specialized materials).
  • Advanced materials (e.g., adaptive camouflage, functional textiles, biomaterials).
  • Advanced surveillance technologies (e.g., faceprint and voiceprint technologies).

The Notice says that the agency is not seeking to expand jurisdiction over technologies that are not currently subject to the EAR (e.g., “fundamental research” that  is ordinarily published and shared broadly within the research community), or to change existing controls on technology already described in the Commerce Control List (“CCL”).  The current review is limited to “emerging technologies.”  The BIS expects to issue a separate notice on “foundational technologies,” but also is seeking public comments on whether it should treat emerging and foundational technologies “as separate types of technology”.

The final controls on emerging and foundational technologies will be determined by an interagency process that will include input from CFIUS.  As we advised in prior commentaries, the CFIUS pilot program defines “critical technology” to include emerging and foundational technologies controlled pursuant to Section 1758 of the Export Control Reform Act of 2018.  The final controls on emerging and foundational technologies will therefore determine the scope of “critical technology” for purposes of the CFIUS pilot program, which reaches even non-controlling investments.

This article is for general information purposes only. It is not intended as legal advice, and you should not consider it as such.