On November 19, 2018, the Department of Commerce’s Bureau of Industry and Security (“BIS”) published a long-awaited advance notice of proposed rulemaking (“ANPRM”) seeking public comment on criteria for identifying “emerging technologies” that are essential to US national security with a view to imposing export controls on such largely uncontrolled technologies. This process is being undertaken pursuant to Section 1758 of the Export Control Reform Act of 2018 (“ECRA”), which mandates the establishment of a regular multi-agency process for identifying appropriate controls on emerging and foundational technologies that are “essential to the national security of the United States” and that are currently subject to no or very limited controls under other existing US export control regimes. (BIS also announced that it will issue a separate ANPRM in the future regarding the identification of foundational technologies that may be important to US national security.)
BIS is accepting comments to the ANPRM by mail and via the Federal eRulemaking Portal until December 19, 2018. Companies whose business involves the technology described below are strongly encouraged to submit detailed comments to BIS to help shape how such largely uncontrolled technologies may be controlled going forward.
The ANPRM describes the following extremely broad representative categories of technology from which BIS seeks to determine whether there are specific emerging technologies that are important to US national security for which effective export controls should be implemented:
- Biotechnology
- Artificial intelligence (“AI”) and machine learning
- Position, Navigation, and Timing technology
- Microprocessor technology
- Advanced computing technology
- Data analytics technology
- Quantum information and sensing technology
- Logistics technology
- Additive manufacturing (e.g., 3D printing)
- Robotics
- Brain-computer interfaces
- Hypersonics
- Advanced materials
- Advanced surveillance technologies
The ANPRM also includes a list of representative examples of such technologies for each of the above categories (e.g., computer vision and national language processing within the AI and machine learning category).
The ANPRM provides that technologies may be considered “essential to the national security of the United States” if they either have potential conventional weapons, intelligence collection, weapons of mass destruction, or terrorist applications, or could provide the United States with a qualitative military or intelligence advantage. The ECRA-mandated process requires BIS to adopt a more systematic approach to controlling emerging technology. This process builds upon the existing, ad-hoc process for BIS to impose such controls under “0Y521” Export Control Classification Numbers pursuant to Section 742.6 of the Export Administration Regulations.
Once BIS identifies the emerging technologies to be controlled through this process, it will have discretion to set the precise level of export controls. At a minimum, licenses will be required for the export such technologies to countries subject to a US embargo, including countries such as China and Venezuela that are subject to a US arms embargo. This could have significant implications for deemed export and technology transfer licensing burdens going forward. As with the 0Y521 process, BIS will be required to propose that controls imposed on emerging technologies be adopted by the relevant multilateral export-control regime (e.g., Wassenaar Arrangement).
In order to assist BIS in this process, the ANPRM seeks public comment on:
- How to define emerging technology to assist identification of such technology in the future;
- Criteria to apply to determine whether there are specific technologies within these general categories that are essential to US national security (e.g., Whether certain subsets of identified technology (particularly if already ubiquitous) are not worth controlling?);
- Sources to identify such technologies;
- Other general technology categories that warrant review to identify emerging technologies that are important to US national security;
- The status of development of these technologies in the United States and other countries (e.g., Is a company in another country already a leader in developing a specific technology? If not, by when could another company in another country become a leader?);
- The impact specific emerging technology controls would have on US technological leadership (e.g., In particular, would new technology controls on these as-yet uncontrolled technologies impose burdensome deemed export requirements?);
- Any other approaches to the issue of identifying emerging technologies important to US national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.
Given the significant breadth of the identified categories of technologies under review, the fact that many of these technologies are already somewhat ubiquitous, and the significant ramifications should the US Government impose controls on such technologies, this may be a company’s best opportunity to affect how such technology controls are imposed first unilaterally in the United States and, subsequently, more globally through multilateral controls.
Companies should be cognizant that any confidential technical data they provide in their comments may not be kept confidential and could be published by BIS on the Federal eRulemaking Portal. Baker McKenzie would be happy to assist interested companies in preparing and submitting public comments in response to this ANPRM.
